Hicks v. Ricardo
| Decision Date | 23 July 1992 |
| Docket Number | No. 01-91-00671-CV,01-91-00671-CV |
| Citation | 834 S.W.2d 587 |
| Parties | Miriam HICKS, Appellant, v. Brian M. RICARDO, D.D.S., Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
Richard N. Laminack, Thomas W. Pirtle, Houston, for appellant.
M. Karinne McCullough, Robert L. Ramey, Houston, for appellee.
Before OLIVER-PARROTT, C.J., and MIRABAL and PRICE 1, JJ.
This is an appeal from a judgment in a dental malpractice suit. In six points of error, appellant, Miriam Hicks, argues the trial court abused its discretion by denying her motion for new trial. We reverse and remand the case for new trial. Summary of treatment
Appellant, Miram Hicks, sued appellee, Dr. Brian M. Ricardo, for negligent and grossly negligent dental care. Hicks was treated by Ricardo from 1984 until 1986. Prior to Hicks' initial visit with Ricardo, her family dentist, Dr. Fullenweider, had extracted four upper teeth and inserted a partial bridge to replace those teeth. According to Hicks, Fullenweider recommended that Hicks have a back tooth extracted. Hicks testified that she visited Ricardo for that purpose. Ricardo replaced the partial bridge installed by Fullenweider with a cantilever bridge in March of 1984. The cantilever bridge is cosmetically more appealing than a partial bridge. It is designed to make the patient's teeth look more like normal teeth. Approximately five months after the new bridge was installed, Hicks testified that she began to experience "swelling, infections, leakage, movement and crumbling of caps." In August of 1984, Ricardo attempted to patch porcelain that had fractured off of some Hicks' teeth that were part of the bridge. One year after the bridge was installed, Ricardo was again required to do repair work on the bridge and teeth. There was a fracture on the back part of the bridge and Ricardo attempted to fuse the area with cement. When the fusion did not work, Ricardo replaced the bridge and continued to work with fitting it during April and May of 1985.
After the new bridge was installed, Hicks again complained of similar problems she had experienced with the first bridge that Ricardo had installed. Ricardo testified that Hicks had ground the enamel off her front teeth. Ricardo further testified that he explained to Hicks that the use of a night guard was required to allow her front teeth to heal and to prevent her teeth from dying. The front teeth in effect were holding the bridge in place. Hicks testified that Ricardo told her that grinding her teeth would damage the bridge. However, Ricardo disputed Hicks' testimony that she had used the night guard as prescribed by Ricardo.
After several root canals between June of 1984 and July of 1986, Ricardo told Hicks she would need surgery on a tooth that he had performed a root canal on because of infection. At this point, Hicks obtained a second opinion from Dr. Harold Heuzsel who referred her to Dr. Sam Rogers.
Dr. Rogers testified that he began treating Hicks in 1986, and that the bridge was very loose, that the front teeth were fractured off at the gum line, and that there was basically only one tooth holding the bridge in place. Dr. Rogers made a modification to the bridge and did not remove it for cosmetic appearances. Dr. Rogers subsequently replaced six caps on Hicks teeth and repaired the fractured teeth.
The jury award
In response to the comparative fault issues, the jury found 60 percent of the negligence attributable to Ricardo and 40 percent attributable to Hicks. In response to the damages issues, the jury awarded $5,000 for past physical pain and mental anguish, $1,000 for past physical impairment, $10,000 for medical care in the past, and $1,000 for future medical care. The jury awarded nothing for future physical pain and mental anguish, for past disfigurement, for future disfigurement, and for future physical impairment.
Hicks' motion for new trial
After the return of the verdict, the trial court considered various posttrial motions. Relevant to Hicks' appeal is the trial court's consideration and ruling on her motion for new trial. In her motion for new trial, Hicks complained that, although the jury found compensable injury, the jury failed to award adequate damages. Hicks argued the jury's finding of $10,000 for past medical care was against the overwhelming weight of the evidence because the uncontroverted evidence showed that past medical expenses amounted to $13,543.42. Hicks also argued the jury award of $1,000 for future medical care was against the overwhelming weight of the evidence because the uncontroverted evidence from expert testimony showed that future cost of medical care would be $2,000. In addition, Hicks argued the jury's award for the remaining damages was inadequate and that an award of future medical expenses, while awarding zero for future pain and mental anguish, was against the greater weight and preponderance of the evidence.
Standard of review
A trial court has wide discretion in denying a motion for new trial, and its action will not be disturbed on appeal absent a showing of an abuse of discretion. Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex.1983). The standard of review depends on the complaint preserved by the motion for new trial. Sufficiency of the evidence challenges are governed by legal and factual sufficiency standards of review.
Only one standard of review is used in reviewing factual sufficiency challenges, regardless of whether the court of appeals is reviewing a negative or an affirmative jury finding or whether the complaining party had the burden of proof on the issue. M.J. Sheridan & Son v. Seminole Pipeline, 731 S.W.2d 620, 623 (Tex.App.--Houston [1st Dist.] 1987, no writ). The court of appeals must examine all the evidence, Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex.1986), and having considered and weighed all of the evidence, it should set aside the verdict only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).
In her first point of error, Hicks complains of the trial court's use of additur for past medical expenses, and in her second, third, fourth, and fifth points of error, Hicks argues the trial court abused its discretion by denying her motion for new trial because the jury's findings of "zero" with respect to past and future disfigurement, future physical impairment, and future pain and mental anguish are so against the great weight and preponderance of the evidence as to be manifestly unjust. In her sixth point of error, Hicks complains of the inadequacy of the amount awarded for future medical expenses. Because we agree that the jury's failure to award damages for future pain and mental anguish is against the great weight and preponderance of the evidence, we will only address Hicks' fifth point of error.
The jury awarded Hicks damages for past but not future pain and mental anguish. Hicks contends that she is now a "dental cripple" as a result of the cantilever bridge. She argues the uncontroverted testimony shows the bridge caused teeth to fracture and crumble and ultimately to break off at the gum line and that she will in the future require a full upper denture and lose all of her remaining teeth.
Mental anguish is defined as "intense pain of body or mind ... or a high degree of...
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