Supreme Court of Texas
                            ══════════
                             No. 19-0872
                            ══════════

                Memorial Hermann Health System,
                               Petitioner,

                                    v.

  Miguel A. Gomez, III, M.D. and Miguel A. Gomez, M.D., P.A.,
                             Respondents

   ═══════════════════════════════════════
              On Petition for Review from the
       Court of Appeals for the First District of Texas
   ═══════════════════════════════════════

                      Argued October 28, 2021

      CHIEF JUSTICE HECHT delivered the opinion of the Court.

      Justice Bland did not participate in the decision.

      After leaving one hospital for a new rival, a pioneering
cardiovascular surgeon sued the former for engaging in a retaliatory
“whisper campaign” against him. The surgeon alleged that the hospital
used faulty data on his patients’ mortality rates to suppress competition,
injure his reputation, and impair his practice. The jury rejected his
anticompetition claims but found that the hospital had defamed him and
disparaged his professional association. The hospital’s argument that no
evidence supports the jury’s defamation and disparagement findings
turns on how a reasonable juror would interpret the charge that was
given. We hold that the plain text of the charge must be given its
commonsense meaning in the context of the case. The court of appeals
affirmed the trial court’s judgment for the surgeon. 1 We reverse and
render.
                                      I
                                      A
      Dr. Miguel A. Gomez, III, is a cardiovascular surgeon who began
practicing at one of Memorial Hermann’s Houston campuses, Memorial
City, in 1998. He partnered with an established surgeon and pioneered
“off-pump” and robotic-assisted heart surgeries. These procedures
received media acclaim and were heavily promoted by Memorial
Hermann.
      But around 2008, things began to change—both internally at
Memorial City and externally in the Houston hospital market.
Internally, Memorial City initiated data-driven programs aimed at
examining and improving patient outcomes. As part of this effort,
Memorial City hired Byron Auzenne as the heart and vascular service
line leader. Auzenne was not directly involved in patient care. Instead,
he served as a “facilitator” to the physicians at Memorial City, providing
assistance with—in his words—“pretty much anything that they
need[ed] to work at the hospital”. Part of Auzenne’s new position
involved facilitating data collection and analysis for cardiovascular



      1   

 (Tex. App.—Houston [1st Dist.] 2019).




                                      2
surgeons.
       Patient statistics matter to surgeons and hospitals, who
understand what they both do and do not show. A more skilled
cardiovascular surgeon may have a higher patient mortality rate than a
less skilled surgeon only because of the higher difficulty of surgeries the
skilled surgeon takes on. Healthier patients may have better surgical
outcomes than those with other health issues. A flawed data sample that
fails to take these and other factors into account can produce skewed
results that do not accurately reflect a surgeon’s quality of care.
Surgeons and hospitals know this. The Society of Thoracic Surgeons
(STS) adjusts the raw data that it compiles for seven risk-adjusted
procedures so as not to compare surgical apples and oranges. Due to
concerns over sample variations, STS does not create any type of
surgeon-specific mortality rate. The resulting database is a highly
valuable resource for hospitals that raw data cannot serve.
       A Memorial City physician subcommittee chaired by Gomez
recommended that the hospital better utilize STS data and share the
data among physicians in the heart and vascular service line. Based on
this   recommendation      and    encouragement      by   the    hospital’s
administration, Memorial City began to create a process for reviewing
the underlying data it sent to STS.
       Memorial City began with raw, non-risk-adjusted mortality data.
Over the summer of 2009, Auzenne met with Memorial City’s CEO Keith
Alexander and other leaders in the hospital to discuss some initial
findings and concerns. Among other things, their review of the raw data
showed that Gomez was a “primary driver” of the hospital’s “unfavorable




                                      3
mortality rate.”
      Meanwhile, the Houston hospital market was changing.
Methodist Hospital announced plans to open a new hospital campus—
Methodist West—just miles from Memorial City. The arrival of this new
competitor “registered very high on the radar” of Memorial City’s
administration, and for good reason. Methodist West’s CEO, Wayne
Voss, had previously been Memorial City’s CEO and had relationships
with employees and physicians there. Methodist West quickly began to
recruit from Memorial City. Voss approached Gomez about operating at
Methodist West. The offer interested Gomez, who was beginning to see
a negative “culture change” taking place at Memorial City that he
believed was adversely affecting patient care. Gomez’s interest in taking
at least some of his practice to Methodist West was not a secret.
      With Methodist West contemplating a future relationship with
Gomez, Jennifer Todd of Memorial Hermann made a call to Cyndi Peña
at Methodist West. Broadly stated, Todd’s job with Memorial Hermann
was to communicate with physicians on behalf of the hospital. Peña had
worked with Todd at Memorial Hermann before leaving for Methodist
West. Peña’s job at Methodist West included recruiting physicians. Todd
called to report concerns about Gomez, telling Peña: “I heard bad
quality, high mortality rates, unnecessary surgeries.” According to
Peña, this information was “out there already . . . in the ether,” and she
had heard similar reports from multiple physicians. Peña reported this
information to Methodist West’s CEO, Voss. After reviewing Gomez’s
qualifications, Methodist West hired him to provide surgical services
and serve as both the “Co-Director of the Cardiovascular Robotics




                                    4
Institute” and “Senior Advisor for Cardiovascular Surgery Service
Development at [the] West Houston [campus]”.
      Back at Memorial City, Gomez’s relationship with the hospital
was deteriorating. Word had gotten back to him of the individual
surgeon mortality data results. Gomez expressed his concerns to Dr.
Rick Ngo, chair of Memorial City’s peer review and surgical performance
improvement committee, that the raw data did not accurately reflect a
surgeon’s performance. Ngo shared many of Gomez’s misgivings about
the data but believed they could be a helpful starting point so long as
the hospital used them “the right way with the right methodology.” Ngo
expressed his concerns to Auzenne and began a peer review of the cases
that made up the dataset. While this review was underway, the non-
risk-adjusted data were shared at various surgeon and committee
meetings. The data were blinded, and an individual surgeon’s results
were shown only to that individual.
      In early 2010, Ngo and the peer review committee completed the
peer review of the cardiovascular surgery program. Ngo found no
quality-of-care issues among the cardiovascular surgeons, including
Gomez. Ngo specifically communicated this finding to the hospital
administration and to Gomez. After looking into the data on a case-by-
case basis, Ngo concluded that the non-risk-adjusted data presented a
flawed picture of a surgeon’s quality of care.
      Despite this finding, Memorial City continued to collect and use
non-risk-adjusted mortality rates as part of its metrics program.
According to Gomez, he did not become aware of the hospital’s continued
reliance on this data until a presentation at a cardiovascular




                                    5
subcommittee meeting in November 2011. There, the presentation again
showed blinded individual mortality rates of each surgeon—the same
information that Gomez believed was faulty. During the meeting,
Gomez objected to the data’s use. In response, the presenter told the
audience that “only the surgeons that look bad need . . . to be
concerned.”
      After the meeting, Gomez confronted Auzenne about the
continued use of non-risk-adjusted data. Gomez testified:
      [Auzenne] said that he had spoke[n] to CEO Keith
      Alexander and they had discussed it and they felt that the
      data needed to be shared, that we needed to be a
      transparent organization, that this was a safety
      issue, . . . and that means they can do what they will with
      the data and that he was going to show it and had shown
      it to cardiologists at cardiology meetings and other
      physicians who referred to me so they can make informed
      decisions when they refer patients.
      According to Gomez, “several doctors” confirmed that the hospital
had been sharing his individual mortality data. Auzenne denied making
the statement and sharing data on an individual surgeon with anyone
other than that individual. None of the doctors referring patients to
Gomez testified at trial.
      Gomez had been experiencing a decline in cardiovascular
surgeries and believed that a “whisper campaign” by Memorial City and
its sharing of the misleading data injured his reputation and explained
the decline in his practice. After a confrontation with CEO Alexander,
Gomez resigned his privileges at Memorial City in April 2012 and moved
what remained of his “damaged” practice entirely to Methodist West.




                                   6
                                         B
       Gomez and his professional association 2 sued Memorial Hermann
for an illegal restraint of trade (antitrust conspiracy), tortious
interference with prospective business relations, defamation, and
business disparagement. After extensive discovery, 3 the case was tried
to a jury for three weeks.
       The parties worked extensively with the trial court to craft the
jury charge. Trial centered on the anticompetition claims, which were
the first claims presented to the jury. The final charge for the antitrust
conspiracy and tortious interference claims asked broadly if “Memorial
Hermann conspire[d] with others to restrain trade by causing referring
physicians to stop referring . . . surgical patients to Dr. Gomez” and
whether that conspiracy actually restrained trade or interfered with his
business relationships. Gomez sought a similarly broad question for the
defamation and business disparagement claims, proposing the
following: “Did Memorial Hermann publish inaccurate data related to
the mortality rates of Dr. Gomez’s patients?” Memorial Hermann
objected that the question was too vague, and the trial court agreed. 4


       2   Miguel A. Gomez, M.D., P.A.
       3 Along the way we resolved a discovery dispute largely in Gomez’s
favor. In re Mem’l Hermann Hosp. Sys., 

 (Tex. 2015).
       4In a defamation case we decided a few Terms ago, the trial court had
submitted a broad jury charge that did not identify specific statements but
instead asked: “Did any of the [defendants] publish a statement that [plaintiff]
was involved in taking kickbacks?” See Durant v. Anderson, No.
02-14-00283-CV, 

, at *16 (Tex. App.—Fort Worth Mar. 19,
2020, pet. denied). The defendants challenged the charge on the ground that it
failed to require the jury to find that they made specific defamatory




                                         7
The court asked Gomez for a “laundry list” of the specific statements on
which he was relying. Ultimately, the parties agreed to inquire of the
jury about two specific statements quoted in the charge. Neither side
objected.
        One statement was by Todd, who told Peña concerning Gomez: “I
heard bad quality, high mortality rates, unnecessary surgeries.” The
other was Auzenne’s statement to Gomez that:
        he had spoke[n] to CEO Keith Alexander and they had
        discussed it and they felt that the data needed to be shared,
        that we needed to be a transparent organization, that this
        was a safety issue, . . . and that means they can do what
        they will with the data and that he was going to show it
        and had shown it to cardiologists at cardiology meetings
        and other physicians and who referred to me so they
        can . . . make informed decisions when they refer patients.
        With respect to each quoted statement, the charge instructed the
jury to “[a]nswer the following questions with respect to [Todd’s or
Auzenne’s] alleged statement that . . .”—then set out in quotation marks
the statements just quoted. The charge then asked, on Gomez’s
defamation claim:
   1.       Did Memorial Hermann publish the statement?
   2.       Was the statement false at the time it was made as it related
            to Dr. Gomez?
   3.       Was the statement defamatory concerning Dr. Gomez?
   4.       Did Memorial Hermann know or should it have known in the
            exercise of ordinary care that the statement was false and had
            the potential to be defamatory?
   5.       Should Dr. Gomez, in the exercise of reasonable diligence,

statements. We did not reach the argument because of our disposition of other
issues. Anderson v. Durant, 

, 623 n.95 (Tex. 2018).




                                     8
           have discovered the statement before September 17, 2011?
Each of the questions referred to “the statement”.
       The jury was also asked for each of the two statements whether
they disparaged Gomez’s professional association. As on the defamation
claim, the jury was instructed to “[a]nswer the following questions with
respect to” each statement set out in quotation marks. The jury was
instructed that “Memorial Hermann disparage[d] Gomez PA if it
publishe[d] a disparaging false statement about the business”. The jury
was further instructed that “[a] statement is ‘published’ if it is
intentionally communicated to a person other than Dr. Gomez who is
capable of understanding its meaning.” 5
       The questions about the Auzenne statement confused the jury. In
a note to the court during its deliberations, the jury asked: “[D]oes the
court want to know if the exact statement [by Auzenne] as quoted was
published or if the data referred to in the statement is being published?”
The trial court recognized that instructing the jury to consider whether
the data were published rather than the quoted statement would revert
to the question Gomez had proposed originally and the court had
rejected. But the trial court also acknowledged that instructing the jury
to consider only the quoted statement itself was tantamount to directing



       5 See COMM. ON PATTERN JURY CHARGES, STATE BAR OF TEX., TEXAS
PATTERN JURY CHARGES—BUSINESS, CONSUMER, INSURANCE & EMPLOYMENT
PJC 110.1 (2020) (explaining that the defamation and business disparagement
questions “assume as their subject a single allegedly defamatory statement”);
PJC 110.2 (proposing that the jury be asked: “Did [defendant] publish the
following: [insert alleged defamatory matter]?”); PJC 110.15 (providing model
business disparagement question, asking the jury to consider “only” the
submitted statements, which must be “defined by pleadings and proof”).




                                     9
a verdict for Memorial Hermann because there was no evidence that
Auzenne made the statement to anyone but Gomez and therefore did
not publish it. Although the court believed “the intent of the question is
to inquire about the data”, it declined to alter the question Gomez had
agreed to submit. Faced with this conflict, the trial court instructed the
jury simply “to answer [the questions] to the best of the jury’s ability as
the jury understands the questions.”
         The jury found no illegal antitrust conspiracy or tortious
interference with business relations on the part of Memorial Hermann.
But the jury did find for Gomez on the defamation and business
disparagement claims, answering all questions regarding the Todd and
Auzenne statements in his favor. The jury awarded damages for loss of
reputation, mental anguish, lost profits, and exemplary damages. In
total, the trial court’s final judgment awarded Gomez over $6.3 million.
         The court of appeals affirmed. It rejected Memorial Hermann’s
argument that the question to the jury was whether Auzenne’s
statement itself was published as quoted in the charge, holding instead
that the question inquired whether the data referred to in the statement
were published. 6 Similarly, the court rejected Memorial Hermann’s
argument that the jury was asked whether Todd’s exact statement to
Peña caused harm, holding instead that the question inquired whether
a “whisper campaign” of “circulating rumors” about Gomez, of which
Todd’s        statement    was   typical,    caused   harm. 7   Based    on   this



         6   

, 612 (Tex. App.—Houston [1st Dist.] 2019).
         7   

.




                                            10
interpretation of the jury charge, the court of appeals determined that
the record contained evidence that the data Auzenne referred to in his
statement to Gomez were published, 8 and that the Todd statement
caused harm to Gomez’s reputation and lost profits to his professional
association. 9
         We granted Memorial Hermann’s petition for review.
                                         II
         Recovery for defamation requires proof (1) of the publication of a
false statement of fact to a third party, (2) that defamed the plaintiff,
(3) with the requisite degree of fault, and (4) that proximately caused
damages. 10 “A business disparagement claim is similar in many respects
to a defamation action.” 11 Among other elements, a successful claim of
business disparagement requires proof of both a published false
statement and that the statement caused damages to the plaintiff. 12
Memorial Hermann argues that no evidence supports the jury’s findings
that Memorial Hermann published the Auzenne statement or that the
Todd statement caused Gomez or his professional association any



         8   

.
         9   

.
         10   Anderson v. Durant, 

 (Tex. 2018).
         11   Forbes Inc. v. Granada Biosciences, Inc., 

 (Tex.
2003).
          “To prevail on a business disparagement claim, a plaintiff must
         12

establish that (1) the defendant published false and disparaging information
about it, (2) with malice, (3) without privilege, (4) that resulted in special
damages to the plaintiff.” 

 (citing Hurlbut v. Gulf Atl. Life Ins. Co., 

 (Tex. 1987)).




                                         11
damages. Both arguments require us to interpret the charge before
considering the evidence.
                                       A
       As we have explained, for both the defamation and business
disparagement claims, the charge instructed the jury to:
       Answer the following questions with respect to Byron
       Auzenne’s alleged statement that “he had spoke[n] to CEO
       Keith Alexander and they had discussed it and they felt
       that the data needed to be shared, that we needed to be a
       transparent organization, that this was a safety
       issue, . . . and that means they can do what they will with
       the data and that he was going to show it and had shown
       it to cardiologists at cardiology meetings and other
       physicians and who referred to me so they can . . . make
       informed decisions when they refer patients.”
The charge then asked the jury: “Did Memorial Hermann publish the
statement?” 13
       In determining whether a charge interpretation is reasonable,
“[t]he charge must be viewed as a whole, and interpreted in the light of
its entire content, of the issues between the parties, and of the evidence
relevant thereto.” 14 Jury charges are given their commonsense
interpretation, gleaned from both the text of the charge and the context




       13 The business disparagement question asked: “Did Memorial
Hermann disparage Gomez PA?” It then instructed the jury that a statement
must be published in order to support a claim of business disparagement.
Again, the jury charge instructed the jury to answer this question “with respect
to Byron Auzenne’s alleged statement”.
       Broughton v. Humble Oil & Refin. Co., 

 (Tex. Civ.
       14

App.—El Paso 1937, writ ref’d).




                                      12
of the case. 15 When faced with ambiguous jury findings, a reviewing
court must interpret the charge such that the findings uphold the
judgment. 16 But a court cannot ignore a charge’s plain, commonsense
meaning merely because an unreasonable interpretation would better
align with the judgment. 17
       Our decision in Jackson v. U.S. Fidelity & Guaranty Co. provides
a template for jury charge interpretation. 18 The jury there was tasked
with allocating by percentage the cause of incapacity in the plaintiff’s
hand between two preexisting injuries and the injury in question. 19 The
jury found that the plaintiff’s two preexisting injuries contributed 2.5%


       15   Id.; see also L & S Meats, LLC v. USA Feedyard, LP, No.
07-18-00030-CV, 

, at *3 (Tex. App.—Amarillo Jan. 22, 2020,
pet. denied) (“The relevant viewpoint [in interpreting a jury charge] is that of
a juror untrained in the law who is exercising common sense. . . . To that we
add the duty to interpret them . . . in the context of the whole situation before
the jury.” (citations omitted)); Nip v. Checkpoint Sys., Inc., 

, 772
n.3 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (“We are to read jury
instructions like jurors do—with common sense.” (collecting cases)).
       16 Jackson v. U.S. Fid. & Guar. Co., 

 (Tex. 1985)
(citing First Fed. Sav. & Loan Ass’n of Dallas v. Sharp, 

(Tex. 1962)).
       17 See Saenz v. Fid. & Guar. Ins. Underwriters, 

(Tex. 1996) (despite evidence that plaintiff would incur future medical costs as
a result of a head injury, holding that no evidence supported the jury’s finding
that plaintiff would incur future medical costs as a result of the defendant’s
wrongfully inducing her to settle a claim); Tex. Dep’t of Transp. v. Guerra, 

 (Tex. App.—Houston [14th Dist.] 1993, writ denied) (holding
that when a jury charge asked whether the state gave “a warning”, the charge
could not be reinterpreted to ask whether the state gave “an adequate
warning”, even though doing so would align with the judgment).
       18   

 (Tex. 1985).
       19   

.




                                          13
and 10%, respectively, to his 25% loss of use. One interpretation of the
findings was that 12.5% (10% plus 2.5%) out of the 25% incapacity—half
(25% minus 12.5%)—was caused by the preexisting injuries. Another
interpretation was that only 12.5% of the 25% incapacity—3.125%
(12.5% times 25%)—was attributable to the preexisting injuries. We
concluded that both interpretations were reasonable and that the
verdict was ambiguous. The trial court rendered judgment based on the
first interpretation. Because, and only because, we were presented with
two reasonable interpretations of the jury charge, we interpreted the
ambiguous findings so as to uphold the judgment. 20 We did not simply
work backwards from the judgment to arrive at an accommodating
interpretation. The interpretation must first be reasonable.
       Memorial Hermann argues that the jury was asked questions
about Auzenne’s statement to Gomez, not the data Auzenne referred to
in his statement. The text of the jury instruction was unmistakably
clear. It directed the jury to “[a]nswer the following questions with
respect to Byron Auzenne’s alleged statement that . . .”—then set out in
quotation marks Auzenne’s statement to Gomez, taken verbatim from
Gomez’s testimony about what Auzenne said to him. The use of
quotation marks gave the jury the “exact phraseology” they were to
consider. 21 The first question was: “Did Memorial Hermann publish the



       20 

 (“Having held that the issues were susceptible to the
interpretations of both Jackson and the courts below, the law is clear that we
must affirm the judgments below in this case.”).
       21 See Quotation Mark, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY
(11th ed. 2020).




                                     14
statement?” 22 That is, did it make the statement to someone other than
Gomez? Each of the other questions also referred to “the statement”.
Memorial Hermann’s interpretation of the charge is certainly
reasonable. From the text itself, it is inescapable.
       The context of the case also supports interpreting the charge as
asking only about the specific quotation provided to the jury. The jury
was presented with two general theories of liability: (1) antitrust
conspiracy and tortious interference with prospective business relations
(the anticompetition claims), and (2) defamation and business
disparagement (the defamation claims). The anticompetition claims
were based on the amorphous “whisper campaign,” not on specific
statements. The jury charge asked broadly whether Memorial Hermann
“conspire[d] with others to restrain trade” to Gomez’s detriment. While
Gomez had to prove “that the alleged conspiracy existed”, the jury was
not asked whether any specific action or statement constituted an
antitrust violation. In contrast, on the defamation and disparagement
claims, the charge asked the jury to “answer the following questions
with respect to [a specific] alleged statement” that was quoted verbatim
from the testimony. Those questions repeatedly referred to “the
statement”, as distinct from a broad conspiracy or general restraint of


       22 Again, the business disparagement question used different phrasing,
but the effect was the same. It provided the quoted statement, instructed the
jury to answer “with respect to” the quoted statement, asked if “Memorial
Hermann disparage[d] Gomez PA”, and explained that “Memorial Hermann
disparage[d] Gomez PA if it publishe[d] a disparaging false statement about
the business, and, when it publishe[d] the statement, it kn[ew] the falsity of
the statement or act[ed] with reckless disregard of whether the statement
[was] false”.




                                     15
trade.
         While we must interpret the charge from the jury’s perspective,
we think a reasonable juror should have read the instruction and
questions regarding the Auzenne statement according to their plain,
simple words. And the jury should have read the charge as referring to
a specific quoted statement, just as the following questions about the
Todd statement did, which we will address momentarily.
         Gomez argues that the charge asked not about Auzenne’s specific
statement but about the individual surgeon mortality data the
statement referred to. But the language simply cannot be read in a
commonsense manner to refer to Auzenne’s general use of the data.
Courts have long disclaimed requiring “perfection of expression as to
each isolated sentence” of a jury charge. 23 But we do look to the ordinary
understanding of the words. 24 In this case, the charge instructed the jury
to answer the questions “with respect to” a single quoted statement. The
questions, in turn, asked about “the statement”. The ordinary meaning
of “statement” compels the conclusion that the questions referred to
what the charge directly provided, not a vague showing of data to
unspecified others. Put in its simplest terms, “the statement” is the
statement that was provided for the jury.



       Broughton v. Humble Oil & Refin. Co., 

 (Tex. Civ.
         23

App.—El Paso 1937, writ ref’d).
         See 

 (“[T]he words employed in instructions and issues must
         24

be taken in the ordinary and popular acceptation. The language will be given
the plain, commonsense meaning it was evidently intended to convey when
considered in the light of the charge as a whole . . . .” (quoting West v. Cashin,

 (Tex. Civ. App.—Galveston 1935, writ dism’d))).




                                       16
       The court of appeals disagreed, determining that the statement
identified by the charge was “the individual surgeon mortality data” in
general. 25 In conducting what it considered to be a “common-sense”
reading of the charge, 26 the court of appeals placed significant emphasis
on the evidence presented in the case. 27 Since the “crux” of the case was
Auzenne’s use of the individual surgeon mortality data, that must be
what the jury charge asked about. 28 Because the evidence and the
pleadings revolved around Memorial Hermann’s general dissemination
of Gomez’s individual surgeon mortality data, the court of appeals
determined that it would be nonsensical to interpret the jury charge as
asking only about what Auzenne said to Gomez. 29
       We agree that the evidence and pleadings can assist a court in
interpreting a jury charge, 30 especially the evidence because it provides
the context for the jury’s understanding of the case. But the evidence
and the pleadings are not determinative. A court is not free to rewrite
an unobjected and unambiguous jury charge in order to better capture
what it perceives to be the “crux” of the case. 31 The jury may have


       25   

, 612 (Tex. App.—Houston [1st Dist.] 2019).
       26   See 

       27   See 

.
       28   

.
       29   

.
       30   See State v. Hale, 

 (Tex. 1941).
       31See Seger v. Yorkshire Ins. Co., Ltd., 

 (Tex. 2016)
(“Even if another legal theory was argued to the jury and explained by the
lawyers in argument, we are bound by the instructions given to the jury . . . .”




                                        17
thought it would be asked about the publication of the data rather than
Auzenne’s statement to Gomez, as indicated in its request to the trial
court for clarification. The jury was not present when that issue was
decided by the trial court and counsel. But it was not free to disregard
what the charge plainly asked. To hold otherwise would be to allow the
jury to not just make the findings, but determine which findings are to
be made. That is the province of the court.
       In this case, the plain language of the instruction simply does not
accommodate Gomez’s interpretation, which seeks to revert the charge
to the questions that the trial court rejected and the parties replaced by
agreement. Alignment with the evidence and pleadings alone does not
make this interpretation reasonable. Gomez’s proffered interpretation
of the jury charge is not reasonable. Accordingly, it cannot be used to
support the judgment.
       The charge directed the jury to consider Auzenne’s statement to
Gomez, not Auzenne’s use of the individual surgeon mortality data.
There is no evidence that Auzenne’s statement to Gomez was published.
Gomez does not dispute this. The trial court erred in awarding Gomez
damages for defamation and business disparagement arising out of the
Auzenne statement.


(citing Columbia Rio Grande Healthcare, L.P. v. Hawley, 

 (Tex. 2009))); Osterberg v. Peca, 

 (Tex. 2000) (“[I]t is
the court’s charge . . . that measures the sufficiency of the evidence when the
opposing party fails to object to the charge.” (collecting authorities)). The court
of appeals correctly noted that “[t]he trial court has broad discretion in
submitting jury questions”. 584 S.W.3d at 612 (quoting City of Brenham v.
Honerkamp, 

 (Tex. App.—Austin 1997, pet. denied)). But
Gomez did not object to the jury charge, so we do not consider whether the trial
court abused its discretion in submitting this jury charge.




                                        18
                                        B
       The jury was also asked whether a second statement, made by
Todd to Peña, defamed Gomez or disparaged his professional
association. Like the Auzenne statement, the Todd statement was
quoted in the charge. The jury was instructed to “[a]nswer the following
questions with respect to Jennifer Todd’s alleged statement that ‘I heard
bad quality, high mortality rates, unnecessary surgeries.’” The jury
found that publication of the statement proximately caused damages of
$1,004,500 to Gomez for lost reputation and the same amount to his
professional association for lost profits. Memorial Hermann argues that
there is no evidence of causation of the damages found.
       “Proximate cause encompasses both foreseeability and cause in
fact.” 32 The general test for cause in fact is whether the defendant’s act
was “a substantial factor in causing the injury and without which the
injury would not have occurred.” 33 Because of the jury charge, our
review is limited to the damage proximately caused by Todd’s specific
statement.
       General damages are awarded for noneconomic harms, such as
mental anguish or loss of reputation. 34 General damages are not
susceptible to precise calculation. 35 Because of the inherent difficulty in


       32Anderson v. Durant, 

 (Tex. 2018) (citing Del Lago
Partners, Inc. v. Smith, 

 (Tex. 2010)).
       33   

 (quoting Bos v. Smith, 

 (Tex. 2018)).
       34 Innovative Block of S. Tex., Ltd. v. Valley Builders Supply, Inc., 

, 418 (Tex. 2020); Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys.
Landfill, Inc., 

 (Tex. 2014).
       35   Anderson, 

.




                                        19
precisely quantifying noneconomic damages, Texas law grants the jury
a degree of latitude in this determination. 36 But the awarded damages
must flow from actual injuries. 37 Thus, in most cases, 38 there must be
proof of actual injury before a jury can award general damages.
       A defamation damage award compensates for the “actual impact
of the defamation”. 39 Such impact must be more than theoretical. 40 The
evidence must show “that people believed the statements and the
plaintiff’s reputation was actually affected.” 41
       Direct evidence that people changed their opinion of the plaintiff
as a result of the defamatory statement can meet this threshold. 42 In
Brady v. Klentzman, there was evidence that the plaintiff had a good



       36   

; Burbage v. Burbage, 

 (Tex. 2014).
       37 Burbage, 

 (“Although we agree that the jury
generally has broad latitude in determining damages, we find no evidence of
actual injury in the record.”).
       38   In some cases, the statement is so obviously harmful to one’s
reputation that the jury may presume the existence of nominal general
damages, without proof of actual injury. Innovative Block of S. Tex., Ltd., 603
S.W.3d at 418; Bentley v. Bunton, 

 (Tex. 2002). We call such
statements defamatory per se. But any award beyond a “nominal” or “trifling”
sum must be supported by the evidence. In re Lipsky, 

(Tex. 2015); Hancock v. Variyam, 

 (Tex. 2013). Neither
party contends that Todd’s statement was defamatory per se, and $2 million is
well beyond a “trifling sum”. See 

 (“We have defined nominal damages
as a ‘trifling sum,’ such as $1.” (citing MBM Fin. Corp. v. Woodlands Operating
Co., 

 (Tex. 2009))).
       39   Burbage, 

.
       40   Brady v. Klentzman, 

 (Tex. 2017).
       41   Anderson, 

 (quoting Brady, 

).
       42   See 

                                          20
reputation        before   the   publication,   but   that   “people   in   the
community . . . had a negative impression” of the plaintiff after the
defamatory publication. 43 This direct evidence that people within the
community “thought less of” the plaintiff after the publication
constituted legally sufficient evidence that the publication harmed the
plaintiff’s reputation. 44
       Similarly, evidence of a lost job or business opportunity due to the
defamation can be sufficient. In Brady, we determined the evidence was
legally sufficient when the plaintiff lost his job in such a way that a
reasonable juror could conclude it was related to the defamatory
statements. 45 In Anderson v. Durant, the plaintiff’s prospective
employer had a high opinion of the plaintiff and thought he was “a good
guy”. 46 But the employer cut off the hiring process with the plaintiff
because of the defamatory rumors and would not consider the plaintiff
for another position unless the plaintiff’s name were cleared. 47 This
evidence was legally sufficient to support reputational damages, as it
showed a loss caused by the defamatory statements. 48
       In this case, there is no evidence, viewed in the light most
favorable to the verdict, that Todd’s statement to Peña caused an injury
to Gomez’s reputation. While Peña testified that she “absolutely did

       43   

.
       44   

.
       45   

       46   

.
       47   

.
       48   

                                        21
believe” Todd’s statements regarding Gomez, this was only because the
information shared by Todd was already—as she put it—“kind of
everywhere”. Any change in Peña’s opinion of Gomez was not caused by
Todd’s statement. Peña had “witnessed it” and “heard it from multiple
physicians” before hearing it from Todd.
      Methodist West was in the process of hiring Gomez when Peña
received Todd’s phone call. According to Peña, putting the Methodist
West name behind a physician is “a big deal”. Part of her job was to
ensure that Methodist West’s hiring team was doing its “due diligence
to try to bring [high] caliber and quality of physician to [Methodist
West’s] campus.” This included evaluating physician skill and
reputation. In making a hiring decision, Peña explained, the physician’s
“reputation ranks about as high as what their skill level is”. As part of
her “due diligence”, Peña shared the concerns that she had been hearing
with Voss—Methodist West’s CEO.
      After a full evaluation, Methodist West hired Gomez and gave
him an administrative leadership position. Nothing in the record
indicates that Todd’s statement reached anyone besides Peña and Voss,
and Peña explicitly denied sharing physician data or similar
information with other physicians. Methodist West’s Chief of Staff
testified that Gomez had always enjoyed a good reputation at Methodist
West. Peña testified that she thinks highly of Gomez.
      In sum, Todd told Peña something that Peña had already heard.
Todd’s statement did not cause Peña to change her opinion of Gomez—
the information was “was kind of everywhere” already. Peña testified
that she reported it to Voss out of caution and as part of her job, not




                                   22
because she thought less of Gomez. And most importantly, Methodist
West (through Voss and Peña) hired Gomez—something that the
hospital does not do unless the physician’s skill and reputation prove
exemplary.
      In affirming the award, the court of appeals interpreted the
charge to inquire not just about Todd’s quoted statement but about
“circulating rumors that Gomez was a ‘bad quality’ surgeon”. 49 The court
relied on testimony that “the ‘whisper campaign’ was real and that it
impacted Gomez’s reputation and business.” 50 But this testimony is
outside of our review. We must measure the sufficiency of the evidence
against the jury charge, which asked about damages caused by Todd’s
statement to Peña, not damages caused by a widespread “whisper
campaign”. Evidence of reputational harm caused by the alleged
“whisper campaign” does not amount to any evidence of harm caused by
Todd’s specific statement.
      The court of appeals also pointed to Gomez’s decreased
cardiovascular surgery count at Methodist West as evidence of
reputational harm. 51 As we have noted, “[l]osing a job or business
opportunity due to defamation can support recovery of reputation
damages.” 52 But that loss must be connected to the defamatory




      49   

, 615 (Tex. App.—Houston [1st Dist.] 2019).
      50   

.
      51   

.
      52   Anderson, 

.




                                      23
statements before the jury. 53 Nothing in the record connects Peña to any
of Gomez’s referring physicians. The evidence is legally insufficient to
establish that Todd’s statement caused Gomez any loss of referrals or
business.
       The evidence does not show that Todd’s statement caused any
actual loss of reputation to Gomez. Accordingly, we hold that no evidence
supports the jury’s award of $1,004,500 in damages for loss of
reputation.
       Nor is the evidence legally sufficient to support the $1,004,500
lost profit award, for similar reasons. As discussed above, there is no
evidence that Todd’s statement to Peña caused any damage to Gomez or
his practice. Methodist West hired Gomez. Gomez points to his loss in
referrals. But again, no evidence connects Peña to any of his referring
physicians. In affirming the award, the court of appeals again
improperly relied on evidence of the harm caused by “circulating
rumors”, not the harm caused by Todd’s specific statement. 54 Narrowing
the jury charge to its proper scope, we hold that there is no evidence that
Todd’s statement to Peña caused Gomez to lose any profits. Because
Todd’s statement did not cause Gomez any injury, we reverse the jury’s
award for lost profits.
                         *       *     *       *       *
       By rejecting the broadly framed antitrust claims, the jury



       53 

 (“Evidence that the plaintiff has lost a job or business
opportunities may be evidence of loss of reputation, but only if it is connected
to the defamatory statements.”).
       54   584 S.W.3d at 615.




                                      24
drastically limited the scope of this long-running dispute to two quoted
statements. One statement was not published. The other did not cause
any damages. The jury charge asked about these statements—not an
amorphous “whisper campaign” that the statements supposedly
“represented”. Accordingly, we reverse the judgment of the court of
appeals and render a take-nothing judgment for Memorial Hermann.



                                       Nathan L. Hecht
                                       Chief Justice

OPINION DELIVERED: April 22, 2022




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