Novosad v. Mid-Century Ins. Co.

• Citation: 881 S.W.2d 546
• Decision Date: 27 July 1994
• Docket Number: MID-CENTURY,No. 04-93-00375-CV,04-93-00375-CV
• Parties: Janice NOVOSAD, Appellant, v.INSURANCE COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 546

881 S.W.2d 546

Janice NOVOSAD, Appellant, v. MID-CENTURY INSURANCE COMPANY, Appellee.

No. 04-93-00375-CV.

Court of Appeals of Texas San Antonio.

July 27, 1994.

Robert E. Valdez, Linda Daniels, Robert E. Valdez, P.C., San Antonio, for appellant.

Robert F. Scheihing, Small, Craig & Werkenthin, P.C., San Antonio, for appellee.

Before CHAPA, C.J., and LOPEZ and STONE, JJ.

STONE, Justice.

Janice Novosad sued Mid-Century Insurance Company of Texas (Mid-Century), under the uninsured/underinsured provisions of her automobile insurance policy for personal injuries sustained when Novosad was involved in an accident with a third party. Mid-Century stipulated to the negligence of the underinsured third party prior to the presentation of any evidence to the jury. By virtue of this stipulation, the only issues presented at trial were the nature and extent of Novosad's injuries and the amount of reasonable attorney's fees incurred by Novosad. Among other damages, Novosad was awarded $7,600 for past and future medical care. On appeal, Novosad argues she is entitled to a new trial because the medical care award fails to provide for the cost of future surgery. By way of cross-point, Mid-Century contends the trial court erred in awarding Novosad attorney's fees because such fees are not recoverable in an underinsured motorist case. We affirm.

In her first point of error, Novosad contends she established as a matter of law that her medical damages exceeded $7,600. Novosad does not assert, however, that she established any particular amount of damages as a matter of law. Thus, if we find this case must be reversed, there is no basis for us to render a different judgment. Further, Novosad has not prayed for reversal and rendition, but asks only that we reverse the judgment and remand the cause for a new trial. For this reason, we need only address points of error two and three, the "great weight and preponderance of the evidence" points.

In points two and three, Novosad contends the jury's award of $7,600 for medical care was against the great weight and preponderance of the evidence. In addressing this point, we must assess all the evidence and reverse for a new trial only if the finding of $7,600 in damages is so against the great weight and preponderance of the evidence as to be manifestly unjust. See Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). "[I]n considering great weight points complaining of a jury's failure to find a fact [or failure to find damages], courts of appeals should be mindful that a jury was not convinced by a preponderance of the evidence." Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988). We must also bear in mind that the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Jones v. Tarrant Util. Co., 638 S.W.2d 862, 866 (Tex.1982).

The accident at issue occurred on October 11, 1990 when an underinsured motorist negligently ran Novosad off the road causing her vehicle to turn over. Novosad injured her neck and back. On the day following the accident, Novosad sought treatment from her family physician, who advised her that she needed to consult with a specialist. Novosad then sought medical treatment from Dr. Peter Holmes. Dr. Holmes, who is board certified, saw Novosad on four occasions between October 23, 1990 and February 13, 1991. Based upon her x-rays, Dr. Holmes concluded Novosad had an evulsion fracture, or had "pulled off a piece of bone" from her spine, which he indicated could have existed prior to the accident. At no time during his treatment did Dr. Holmes conclude that Novosad needed back surgery. Rather, he prescribed physical therapy treatments. In records from his last visit with Novosad, Dr. Holmes indicated she was "doing fantastic" as a result of the therapy. Despite this description of Novosad's condition, Dr. Holmes ordered a magnetic imaging test ("MRI") because Novosad still complained of pain. The MRI was performed in March of 1991. Dr. Holmes reviewed the MRI and the MRI report filed by the radiologist, and was still of the opinion that Novosad did not need surgery. Novosad did not receive the results of the MRI from Dr. Holmes, nor did she ever return to see him.

After approximately nine months without treatment of any kind, and more than one year after the accident, Novosad saw Dr. David Dennis, a board certified orthopedic surgeon. On her first visit to Dr. Dennis, Novosad complained of back pain and numbness, but she was able to bend down, touch her toes, and extend with mild pain. He noted she had no muscle spasms or tightness, which are objective signs of a herniated disc. Likewise, Dr. Dennis did not detect nerve damage or nerve weakness, common problems which occur with a herniated disc. An x-ray taken of Novosad's back revealed Novosad had damaged her lumbar spine area probably as a child or teenager, but in any event prior to the accident.

In addition to his examination of Novosad, Dr. Dennis obtained the MRI for review and read the attached radiologist's report interpreting the film. Based to some extent on the MRI, Dr. Dennis concluded there was a reasonable probability Novosad would need back surgery at some point in the future to correct a herniated disc. He also said that if there were no herniated disc, there would be no reason for surgery. Dr. Dennis did not recommend surgery when he saw Novosad in December 1991, stating that Novosad was the only one able to tell him when she was ready to have surgery. He also noted "at this time, she can handle her pain level, and because of this, I would not recommend the surgery at this time."

When Dr. Dennis saw Novosad a month and a half later, in January 1992, Novosad still experienced pain, but was keeping up with her family and social activities fairly well. He stated that as a result of physical therapy, she was able to get on with her life in spite of any pain she was having. In fact, Dr. Dennis stated she had done so well in physical therapy that she could forego epidural injections which had been suggested in the past. Dr. Dennis also reported, however, that Novosad "may need to consider surgery." In his deposition, Dr. Dennis stated he chose his words very carefully, and that if he had believed she definitely needed surgery in January 1992, he would have said the same in his report.

Dr. Dennis did not see Novosad after the January 1992 visit for approximately nine months. Two and one-half months prior to trial, Novosad visited with the doctor and reported "some pain down the left leg which she had not had before and just a checkup." In his November 2, 1992 report, Dr. Dennis stated that therapy had worked to date, but if it quit working, the next step would be an epidural injection to relieve pain. If the epidural was not effective, Dr. Dennis would schedule a discogram to confirm that Novosad had a ruptured disc and, therefore, required surgery. At the time of trial Dr. Dennis had neither recommended surgery nor performed either the epidural injection or discogram.

Novosad underwent four blocks of physical therapy treatment with Dr. Steve Stratton, a physical therapist to whom she was referred by both Drs. Holmes and Dennis. The first round of treatment was successful. According to Stratton, Novosad's pain was reduced approximately ninety percent during the first round of therapy. The second round of treatment was also successful, with all therapy goals being reached and pain being reduced to virtually nothing. In a September 1991 report, Stratton wrote that Novosad essentially had full range of motion, no point tenderness, and no lack of flexibility. The record also indicates that she received no physical therapy for a period of five months, presumably because she was still doing well. The third block of treatment with Stratton was under the direction of Dr. Dennis. Stratton testified that Novosad admitted to him that she had not followed his advice between the second and third blocks of treatment to follow a home exercise program. Novosad again responded well during the third block of treatment and her pain was reduced to almost nothing.

Finally, beginning on November 10, 1992, Novosad went through a fourth block of therapy treatment with Stratton which ended approximately six weeks prior to trial. At the conclusion of the fourth block of treatment, Stratton indicated Novosad had again experienced a reduction in pain. On January 7, 1993, Stratton wrote a letter to Dr. Dennis stating that Novosad's pain had been reduced with each treatment, but that Stratton was "closing out" Novosad's records, after trying unsuccessfully to reach her several times, because of Dr. Dennis' request to see Novosad before further physical therapy treatments. Up until this time, Dr. Dennis had recommended to Novosad that she return to physical therapy "whenever she wanted," or on an "as needed" basis, without first seeing Dr. Dennis. The letter also indicated Novosad was not experiencing any leg pain, which is symptomatic of a lower back injury. Contrary to his written records, Stratton testified that Novosad did not respond to the physical therapy as a whole since Novosad's pain eventually returned after each block of treatment.

Dr. J. Randy Jinkins, the Director of Neuroradiology at the University of Texas Health Science Center, reviewed the MRI film ordered by Dr. Holmes and utilized by Dr. Dennis. While Dr. Jinkins indicated that disc herniation was a possibility, his conclusion was that Novosad suffered from a mild narrowing of the L4-5 intervertebral disk with circumferential bulging and dehydration. In his opinion, there was "[n]o definite evidence of disc herniation."

At trial, Novosad testified that although she received encouraging results from the physical therapy, the pain always returned. She conceded, however, that she had not followed the exercise program recommended...