Detar Hosp., Inc. v. Estrada

• Decision Date: 14 March 1985
• Docket Number: No. 13-84-099-CV,13-84-099-CV
• Citation: 694 S.W.2d 359
• Parties: DETAR HOSPITAL, INC., et al., Appellants, v. Roque ESTRADA, Appellee.
• Court: Texas Court of Appeals

Page 359

694 S.W.2d 359

DETAR HOSPITAL, INC., et al., Appellants, v. Roque ESTRADA, Appellee.

No. 13-84-099-CV.

Court of Appeals of Texas Corpus Christi.

March 14, 1985.

Rehearing Denied April 4, 1985.

Jim M. Perdue, Perdue, Turner & Berry, Houston, for appellants.

Robert P. Houston, Anderson, Smith, Null & Stofer, Victoria, for appellee.

Before UTTER, YOUNG and KENNEDY, JJ.

OPINION

UTTER, Justice.

This is a medical negligence case, in which the only issues presented on appeal concern damages. For purpose of this opinion, we will designate the parties as they were designated in the trial court below (plaintiff Estrada and defendant Detar Hospital, Inc.). Both parties have appealed from the trial court's judgment awarding plaintiff $827,878.00 in damages.

On January 14, 1982, plaintiff was a patient at defendant-hospital. Plaintiff was placed in an operating room at defendant-hospital to be prepared for a relatively minor, routine operation. While plaintiff was being anesthetized, a medication error was made by an employee of defendant-hospital, and plaintiff received the wrong drug, causing him to experience a myocardial infarction, which resulted in permanent damage to his heart.

Plaintiff brought suit against defendant and the anesthesiologist for his injuries. At the close of plaintiff's case at trial, defendant stipulated liability, and the jury later found the anesthesiologist not liable for plaintiff's injuries. In response to the special issues relating to damages, the jury found that plaintiff had suffered $200,000 in damages for past pain and suffering, would suffer $700,000 in damages for future pain and suffering and, additionally, had suffered $1,100,000.00 in damages for past and future lost earning capacity. Pursuant to the provisions of the Medical Liability and Insurance Improvement Act, TEX.REV.CIV.STAT.ANN. art. 4590i, §§ 11.02 and 11.04 (Vernon Supp.1985), the trial court in its judgment reduced the amount awarded plaintiff by the jury to $827,878.00.

In its fifth and sixth points of error, defendant complains that the evidence was insufficient to support the jury's awards of damages for past and future pain and suffering. An analysis of defendant's arguments under these points of error reveals defendant's only argument to be that the evidence was insufficient to support the amounts of the awards and not the awarding of the damages itself. In its seventh through ninth points of error, defendant claims that the amounts of the awards are excessive.

In considering a "no evidence" or "insufficient evidence" point of error, we will follow the well-established test set forth in Glover v. Texas General Indemnity Company, 619 S.W.2d 400 (Tex.1981); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Allied Finance Company v. Garza, 626 S.W.2d 120 (Tex.App.--Corpus Christi 1981, writ ref'd n.r.e.); CALVERT, No Evidence and Insufficient Evidence Points of Error, 38 Tex.L.Rev. 361 (1960).

The record reflects that, upon receiving the improper medication, plaintiff experienced chest pains and a severe headache before he eventually lost consciousness. During the period of his recovery in the hospital, plaintiff continued to feel chest pains and have headaches. Additionally, plaintiff testified that, after leaving the operating room, he was very anxious and afraid while he remained in the hospital. Upon his return to his home and, ultimately, to his job, plaintiff continued to experience chest pains and headaches. Plaintiff also continued to experience shortness of breath, tiredness and some memory problems.

The record further reflects, that prior to plaintiff's injury, he was a healthy, active forty-one year old male. He participated frequently in athletic activities and suffered no major physical disabilities. Plaintiff's wife testified that, prior to the accident, plaintiff never worried about his health or work. She further testified that plaintiff now has problems with headaches, chest pains, worry and difficulty sleeping. The expert medical witnesses, who testified, stated that plaintiff had suffered permanent and irreparable heart damage and that he knew about the condition.

In determining the excessiveness of a verdict, an appellate court can only exercise its sound judicial discretion and judgment. Flanigan v. Carswell, 324 S.W.2d 835 (Tex.1959). While no clearly enunciated standard exists for the review of such awards, it is clear that such awards are not free from all judicial supervision or control. Collins v. Gladden, 466 S.W.2d 629 (Tex.Civ.App.--Beaumont 1971, writ ref'd n.r.e.). Even if, after reviewing all of the evidence, this Court would have found facts contrary to those found by the jury, we cannot substitute our judgment for that of the factfinder if those findings meet the evidentiary tests. Alford, Meroney & Co. v. Rowe, 619 S.W.2d 210 (Tex.Civ.App.--Amarillo 1981, writ ref'd. n.r.e.). The general rule is that, on appeal, the jury's findings on damages will not be disturbed on the grounds of excessiveness if there is any probative evidence to sustain the award. Armellini Express Lines of Florida, Inc. v. Ansley, 605 S.W.2d 297 (Tex.Civ.App.--Corpus Christi 1980, writ ref'd. n.r.e.); Wharf Cat, Inc. v. Cole, 567 S.W.2d 228 (Tex.Civ.App.--Corpus Christi 1978, writ ref'd. n.r.e.); Sunset Brick & Tile, Inc. v. Miles, 430 S.W.2d 388 (Tex.Civ.App.--Corpus Christi 1968, writ ref'd. n.r.e.).

This Court will not substitute its judgment for that of the jury in the absence of a showing of passion, bias or prejudice by the jury. Armellini Express Lines of Florida, Inc. v. Ansley, 605 S.W.2d at 310. In the absence of an affirmative showing of passion, bias or prejudice, the reviewing court should give every intendment to the evidence supporting the verdict. T.J. Allen Distributing Co. v. Leatherwood, 648 S.W.2d 773 (Tex.App.--Beaumont 1983, writ ref'd. n.r.e.). The mere fact that the verdict is large is not conclusive that it is the result of passion, bias, prejudice or other considerations not found in the evidence. Union Transports, Inc. v. Braun, 318 S.W.2d 927 (Tex.Civ.App.--Eastland 1958, no writ). However, if, after reviewing all of the evidence, the Court finds that the award is so excessive as to shock the conscience of the Court, the award should then be held to be excessive and a remittitur should be ordered. World Oil Co., Inc. v. Hicks, 103 S.W.2d 962 (Tex.Comm.App.1937, opinion adopted); Dover Corp. v. Perez, 587 S.W.2d 761 (Tex.Civ.App.--Corpus Christi 1979, writ ref'd. n.r.e.); Main Bank and Trust v. York, 498 S.W.2d 953 (Tex.Civ.App.--San Antonio 1973, writ ref'd. n.r.e.).

Taking all of the aforementioned standards of review into consideration and after a careful review of the record, we find that the evidence is sufficient to support the jury's findings regarding damages for past and future pain and suffering. Furthermore, we do not find the amounts of the awards to be excessive. Defendant's fifth through ninth points of error are overruled.

In its first point of error, defendant complains that the evidence is insufficient to support the submission of the special issue relating to plaintiff's damages for past and future loss of earning capacity. Initially, defendant argues that, since the record clearly shows that plaintiff was earning a higher salary at the time of trial than at the time of his injury, there is no evidence of any loss of earning capacity. This argument lacks merit because a recovery for loss of earning capacity is not based on the actual earnings lost but rather on the loss of the capacity to earn money. Dallas Railway & Terminal Company v. Guthrie, 146 Tex. 585, 210 S.W.2d 550 (1948); McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710 (1943); Armellini Express Lines of Florida, Inc. v. Ansley, 605 S.W.2d at 312. The true measure of this type of damages is the plaintiff's diminished earning power or earning capacity in the past and/or in the future directly resulting from the injuries, which he has sustained. Southwestern Bell Telephone Company v. Sims, 615 S.W.2d 858 (Tex.Civ.App.--Houston [14th Dist.] 1981, no writ); Greyhound Lines, Inc. v. Craig, 430 S.W.2d 573 (Tex.Civ.App.--Houston [14th Dist.] 1968, writ ref'd. n.r.e.).

Plaintiff testified that he felt that, because he had been injured, he could not perform his job as well as he had performed it prior to his injury and that he worried about keeping his job. Plaintiff further testified that he went to work on many days when he did not feel like working due to his injuries. He felt that, if he started missing work, it would affect his ability to hold his job. Plaintiff also testified that there were occasions when he had his fellow workers "cover for him" when he sat down or rested. Insofar as his earnings were concerned, plaintiff stated that, since returning to work, he had received no merit raises but only cost of living increases, which were given to all employees. Plaintiff's immediate supervisor testified that he had noticed that plaintiff was unable to exert himself physically and had problems making decisions. Plaintiff's supervisor also responded affirmatively when asked whether plaintiff's problems could affect his ability to progress with the plaintiff's employer, DuPont. Dr. Mayer, a medical doctor specializing in occupational medicine, testified that plaintiff's medical condition would place him in "a classification that would limit him in some activities." Dr. Mayer further testified that a man, who once suffered a heart attack, was more susceptible to suffer a heart attack in the future than a man who hadn't suffered a heart attack, and that the fact that a man had suffered a heart attack could play a role in the man's employability. We believe this evidence to be sufficient to support the submission of the special issue concerning plaintiff's past and future loss of earning capacity. Defendant's first point of error is overruled.

In its second and third points of error, defen...