Ritchey v. Crawford

• Decision Date: 11 June 1987
• Docket Number: No. 01-86-0164-CV,01-86-0164-CV
• Citation: 734 S.W.2d 85
• Parties: Mary Kyle Joyce RITCHEY, Appellant, v. Dr. J.T. CRAWFORD, Jr., Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 85

734 S.W.2d 85

Mary Kyle Joyce RITCHEY, Appellant, v. Dr. J.T. CRAWFORD, Jr., Appellee.

No. 01-86-0164-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

June 11, 1987.

Thomas M. Stanley, Ernest Cannon & Associates, Houston, for appellant.

David G. Matthiesen, Funderburk & Funderburk, Houston, for appellee.

Before LEVY, EVANS and SAM BASS, JJ.

OPINION

LEVY, Justice.

Appellant, Mary Kyle Joyce Ritchey, appeals from a take-nothing judgment entered in a dental malpractice case. Ritchey complained that appellee, Dr. J.T. Crawford, Jr., negligently performed a root canal operation by injecting Hydron, a filling material, into a root canal that subsequently came out of the tip of the canal and entered the sinus cavity. Ritchey claims that she developed chronic sinusitis because of the Hydron presence in her sinus cavity. In 13 points of error, she complains of the jury's failure to find Crawford negligent or to award damages.

Ritchey asserts in her first five points of error that the trial court erred in entering judgment and in overruling her motion to set aside the verdict, to disregard findings on certain issues, and to grant a new trial, because there is no evidence, or insufficient evidence, to support the jury's answer to special issue number one. Ritchey also asserts that the trial court erred in overruling her motion because the jury's finding in response to special issue number one was so against the great weight and preponderance of the evidence as to be manifestly unjust and unfair.

Special issue number one reads:

"On the occasion in question, was Dr. Crawford negligent?"

To which the jury answered, "No."

The current standards of review of sufficiency of the evidence and their underpinnings were delineated in In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951), where the Texas Supreme Court held that a "no evidence" point on appeal should be treated as a question of law. 150 Tex. at 664, 244 S.W.2d at 661. A "no evidence" point asks whether there is any evidence of probative force to support the jury verdict; if such evidence exists, then the jury's finding is conclusive and binding on both the trial court and on this Court. Id.

When reviewing an appellant's "no evidence" point of error, an appellate court need consider only the evidence that supports the findings and will disregard all contrary or conflicting evidence. In re King's Estate, 150 Tex. at 664, 244 S.W.2d at 661; Pfeffer v. Southern Texas Laborers' Pension Trust Fund, 679 S.W.2d 691, 694 (Tex.App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.). In such a circumstance, this Court must determine "whether the evidence as a matter of law requires a conclusion contrary to the verdict." In re King's Estate, 150 Tex. at 664, 244 S.W.2d at 661. If the jury has failed to answer a particular issue in favor of an appellant having the burden of proof on the issue, the verdict will be upheld against a "no evidence" challenge even though there is no evidence to support the jury's negative finding.

We overrule Ritchey's points asserting "no evidence" to support the jury's finding that Crawford was not negligent, because Ritchey had the burden at trial to show that Crawford was negligent; Crawford did not carry the burden to prove that he was not negligent. Thus, Ritchey has the burden of demonstrating on appeal that the evidence conclusively established all vital facts in support of the issue. This, as is discussed below, she has failed to do. See generally Middleton v. Palmer, 601 S.W.2d 759, 765 (Tex.Civ.App.--Dallas 1980, writ ref'd n.r.e.); Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex.L.Rev. 361, 364 (1960).

Ritchey also asserts that the evidence is factually insufficient to support the jury's answer to special issue number one, and that the jury's negative finding is against the great weight and preponderance of the evidence. Under this assertion, she argues that Crawford's use of the Hydron procedure was negligent both in the surgical method employed and in the use of an amount of Hydron so large as to enter Ritchey's sinuses.

Factual insufficiency and "great weight" points of error are not questions of law on appeal; they are questions of fact. Thus, this Court must "consider and weigh all of the evidence in the case and [this Court is] to set aside the verdict and remand the cause for a new trial, if it thus concludes that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust--this [is true] regardless of whether the record contains some 'evidence of probative force' in support of the verdict." In re King's Estate, 150 Tex. at 664, 665, 244 S.W.2d at 661; ¹ Pfeffer, 679 S.W.2d at 694.

The Texas Supreme Court has also recognized an appellate court's obligation to review, on insufficiency and great weight points, a jury's negative answer to a special issue. Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex.1986); see also M.J. Sheridan & Son Co. v. Seminole Pipeline Co., 731 S.W.2d 620 (Tex.App.--Houston [1st Dist.], 1987, no writ). The Court determined that the standards set forth in In re King's Estate apply to a jury's negative answer to a special issue. Pool, 715 S.W.2d at 633-635. Under Pool, when the jury negatively answers a special issue on which the appellant has the burden of proof, the proper standard for review of a factual sufficiency point is still "great weight and preponderance," and the courts of appeals are directed to exercise their fact jurisdiction only to prevent a manifestly unjust result. "[We] are not free to reweigh the evidence and set aside a jury verdict merely because the judges feel that a different result is more reasonable." Id. at 634 (quoting Dyson v. Olin Corp., 692 S.W.2d 456, 458 (Tex.1985) (Robertson, J., concurring)).

In considering these "factual insufficiency" points, we must consider and weigh all the evidence in the record, and we must uphold the jury's finding on the issue unless we find that its verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 150 Tex. at 664, 665, 244 S.W.2d at 661. This standard of review is applicable to appellant's "factual insufficiency" claims, even though the appellant had the burden of proof on the issue. See Pool, 715 S.W.2d at 634; Sheridan & Son Co, 731 S.W.2d 620.

Although there is evidence in the record from which the jury might have reached a different conclusion on the issue, the record does not show that the evidence is so contrary to the jury's finding as to be manifestly wrong. There was testimony that Dr. Crawford began to treat Ritchey, a patient with an admittedly pre-existing sinus condition, for a problem in her upper right molar. In his treatment, Crawford attempted, but was unable, to find a fourth canal he saw on Ritchey's x-ray. He referred Ritchey to an endodontist who, after examining Ritchey, advised Crawford that he, too, could not locate the fourth canal, and that the tooth would probably have to be excised.

The evidence is conflicting both as to whether Ritchey insisted on keeping the tooth and as to the nature and extent of Crawford's explanation regarding the consequences of a root canal procedure using Hydron, a surgical procedure offered by Crawford as a possible means of saving her tooth. Crawford testified that he had never informed Ritchey of the risk that Hydron could enter her nasal cavity, saying that he perceived the risk to be very remote, and that in the event Hydron did enter the cavity, he believed that it would not cause damage because it was biologically inert.

Although Crawford had performed many root canals, he had never before done so using Hydron. He testified that he practiced on some excised teeth prior to conducting the procedure on Ritchey, and referred to instructions while he was working. Despite Crawford's lack of such experience, both Crawford and Ritchey's expert, Dr. Carl Trepagnier, an endodontist, agreed on the necessary procedure to follow when performing a root canal. Their testimony as to proper and accepted procedure was substantially similar. Some evidence exists that a professionally accepted procedure was used in Ritchey's case. In addition, while it is true that Crawford admitted "that you are not supposed to perforate the patient's sinus when you are trying to fill a root canal," two of appellant's experts, Dr. James C. Garrett and Dr. Carl M. Trepagnier, admitted that dentists do occasionally get foreign matter into the sinuses. Trepagnier even admitted that a dentist could be as careful as possible and still get some material into the sinuses.

There was also a factual dispute as to whether Crawford performed the procedure against the advice of Trepagnier. Trepagnier's testimony was that he did not affirmatively suggest to Crawford that he use Hydron, but that he could not remember if he specifically advised Crawford not to use it. Crawford testified that Trepagnier was not against the idea of Crawford's using Hydron.

Conflicting testimony also exists as to the...