Austin Periodontal Associates, Inc. v. Husak, No. 03-07-00125-CV (Tex. App. 1/25/2008)
| Decision Date | 25 January 2008 |
| Docket Number | No. 03-07-00125-CV.,03-07-00125-CV. |
| Parties | AUSTIN PERIODONTAL ASSOCIATES, INC. F/K/A C. LEONARD DOLCE, D.D.S., M.S., INC.; AND CHARLES LEONARD DOLCE, D.D.S., M.S., INDIVIDUALLY AND D/B/A PERIODONTAL ASSOCIATES, Appellants, v. KIRSTEN HUSAK, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the District Court of Travis County, 345th Judicial District, No. D-1-GN-03-003418, Honorable Gisela D. Triana, Judge Presiding.
Affirmed.
Before Justices PATTERSON, PURYEAR and PEMBERTON.
This dental malpractice case arises from the bilateral severance of appellee Kirsten Husak's lingual nerve during a procedure to remove her third molars.1 Appellant Charles Leonard Dolce, D.D.S., M.S., performed the procedure. Husak brought suit alleging negligence against Dr. Dolce and his employer, appellant Austin Periodontal Associates, Inc. f/k/a C. Leonard Dolce, D.D.S., M.S., Inc.2 After an eight-day jury trial, the jury found Dr. Dolce negligent and awarded Husak damages. The trial court rendered judgment on the verdict. In five issues, appellants contend that the trial court's judgment should be reversed and that they should be granted a new trial. For the reasons that follow, we overrule their issues and affirm the judgment.
Husak's general dentist Tommy Thomson referred Husak to Dr. Dolce to have crown lengthening done on two of her teeth.3 During the preoperative appointment, Dr. Dolce and Husak discussed and agreed that Dr. Dolce would remove her third molars at the same time.
The surgery took place in April of 2002. During the removal of her third molars, Dr. Dolce bilaterally severed Husak's lingual nerve. He also broke a burr4 in her mouth and did not inform Husak after the surgery that he was unable to find the broken piece. From the surgery, Husak suffered infection, dry socket, and total anesthesia of the front two-thirds of her tongue. Dr. Dolce referred Husak to Dr. James Fuselier, an oral surgeon in Austin, for further treatment, including to treat her infection. Dr. Fuselier referred Husak to Dr. Donald Cohen, an oral surgeon in Houston with postsurgical training in oral and maxillofacial surgery. Dr. Cohen attempted microsurgical repair on the left side of Husak's lingual nerve in August and the right side in October, but the repairs were unsuccessful.
Husak sued Austin Periodontal alleging multiple theories of negligence in bilaterally severing her lingual nerve. Husak's theories included that the removal of her third molars was medically unnecessary and that Dr. Dolce negligently removed her third molars by his incisions or, alternatively, by his drilling. Husak alleged that Dr. Dolce's incisions were below the standard of care because they were made in an area of her mouth where the lingual nerve was known to be located and that the incisions caused her injury.5 Alternatively, Husak alleged that Dr. Dolce improperly drilled into the area of her mouth where the lingual nerve was known to be located and that the drilling was the cause of her injury.
At trial, Husak and her former boyfriend, John McCarthy, testified concerning Husak's physical and mental condition before and after the surgery and the effect the injury has had on her. Husak also presented expert opinion testimony from Dr. Cohen, Dr. Thomson, and Dr. Robert W. Staley, Jr., D.D.S., an oral and maxillofacial surgeon from Oregon. Appellants' defensive theory to the jury was that severance of the lingual nerve was an inherent risk of the procedure, that Dr. Dolce's technique was within the standard of care, and that he severed Husak's lingual nerve during the procedure because the nerve was in anatomically aberrant locations on both sides of her mouth. Dr. James T. Mellonig, D.D.S., a periodontist and professor at the University of Texas Health Science Center in San Antonio, testified as appellants' expert.
The trial court submitted a broad form negligence question to the jury—"Did the negligence, if any, of C. Leonard Dolce, D.D.S., M.S., proximately cause the injury in question?" The jury answered, "Yes." The jury awarded the following amounts in response to the damages question: (i) $45,879.75 for medical care expenses in the past; (ii) $50,000 for physical pain and mental anguish sustained in the past; (iii) $200,000 for mental anguish that, in reasonable probability, Husak will sustain in the future; (iv) $19,500 for physical impairment sustained in the past; (v) $150,000 for physical impairment that, in reasonable probability, Husak will sustain in the future; and (vi) $6,000 for loss of earning capacity sustained in the past.6 Based on the verdict and the trial court's ruling as a matter of law that Dr. Dolce was acting within the course and scope of his employment, the trial court entered judgment against appellants for $503,923.59, which included the damages found by the jury plus pre-judgment interest. This appeal followed.
Austin Periodontal contends that the judgment should be reversed and a new trial granted because (i) the trial court abused its discretion by excluding certain testimony by Dr. Cohen, the subsequent treating periodontist; (ii) the trial court abused its discretion by refusing to provide a "bad result" instruction in the jury charge; (iii) the evidence was legally and factually insufficient to support causation and damages; (iv) the trial court abused its discretion by ruling as a matter of law that Dr. Dolce was acting within his scope of employment when he performed the surgery; and (v) the trial court abused its discretion in redacting informed consent forms and limiting informed consent evidence.
Appellants' complaints on appeal include that the trial court abused its discretion in excluding evidence and in denying a requested jury instruction. See Larson v. Downing, 197 S.W.3d 303, 304-05 (Tex. 2006) (); In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000) (). A trial court abuses its discretion when it acts without regard to any guiding rules or principles. Downing, 197 S.W.3d at 304-05; City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex. 1995).
To reverse a judgment based on a claimed error in either an evidentiary ruling or in the jury charge, a party must show that the error probably resulted in the rendition of an improper judgment. See Tex. R. App. P. 44.1(a)(1); Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex. 2001) (exclusion of evidence); Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex. 2002) (); Niemeyer v. Tana Oil & Gas Corp., 39 S.W.3d 380, 387 (Tex. App.-Austin 2001, pet. denied) (). To determine whether excluded evidence probably resulted in an improper judgment, we review the entire record and usually require the complaining party to demonstrate that the judgment turns on the evidence that was excluded. Interstate Northborough, 66 S.W.3d at 220; Alvarado, 897 S.W.2d at 753-54; Perez v. Embree Constr. Group, Inc., 228 S.W.3d 875, 884 (Tex. App.-Austin 2007, pet. filed) (). "Error in the jury charge is reversible if, when viewed in light of all the circumstances, it amounts `to such a denial of rights of the complaining party as was reasonably calculated and probably did cause the rendition of an improper judgment.'" Niemeyer, 39 S.W.3d at 387 (quoting Howell Crude Oil Co. v. Donna Refinery Partners, Ltd., 928 S.W.2d 100, 110 (Tex. App.-Houston [14th Dist.] 1996, writ denied)).
Appellants also raise challenges to the legal and factual sufficiency of the evidence. A legal sufficiency challenge may only be sustained when the record discloses one of the following situations:
(a) a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; [or] (d) the evidence establishes conclusively the opposite of the vital fact.
City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005) (quoting Robert W. Calvert,"No Evidence" & "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362-63 (1960)). In determining whether a finding is supported by legally sufficient evidence, we view the evidence in the light most favorable to the finding, "crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not." Id. at 807. We indulge every reasonable inference that would support the finding. Id. at 822; Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 552 (Tex. 2004).
In reviewing the factual sufficiency of the evidence, we consider and weigh all the evidence presented at trial, including any evidence contrary to the judgment. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We set aside a finding for factual insufficiency if it is "so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Cain, 709 S.W.2d at 176.
In the first issue, Austin Periodontal complains that the trial court abused its discretion in excluding two passages from Dr. Cohen's testimony that went to his credibility.7 Austin Periodontal complains that the jury should have been allowed to hear Dr. Cohen's testimony that he had performed only one other lingual nerve repair as a lead surgeon and that he also testified for the plaintiff in that...
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