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Cruz v. Paso Del Norte Health3/29/2001
on unrelated to the medical services provided. The plaintiffs settled their claim against the obstetrician and dismissed their claims against the other physician and the nurse. The hospital was the sole remaining defendant. During trial, the plaintiffs learned that the hospital had failed to disclose the name of a respiratory therapist who was in the delivery room at the time of the child's birth. As a result, the trial court struck the hospital's pleadings and entered a default judgment against the hospital on the liability issue. The jury then answered "none" to the damage questions. The hospital's position was that the jury's negative answer to the damage questions meant that the Kirkpatricks did not convince the jury that the hospital's negligent medical services during labor and delivery caused the child's cerebral palsy. The appellate court affirmed.
It is particularly within the jury's province to weigh opinion evidence and the judgment of experts. Pilkington v. Kornell, 822 S.W.2d 223, 230 (Tex.App.--Dallas 1991, writ denied). The jury decides which expert witness to credit. Pilkington, 822 S.W.2d at 230.
In considering great weight points complaining of a jury's failure to find a fact, we must be mindful that a preponderance of the evidence did not convince the jury. We may not reverse merely because we conclude that the evidence preponderates toward an affirmative answer. Kirkpatrick, 862 S.W.2d at 772.
CONCLUSION
Despite our recognition as parents of the pain of a grieving mother, we are constrained to respect the parameters imposed upon an intermediate appellate court. While we can certainly conceive that Sergio's devastating injuries may be the result of someone's negligence, the jury's failure to find that any negligence of the nurses was a proximate cause of his injuries is not against the great weight and preponderance of the evidence. Issue Nos. One, Two, and Three are overruled. Having overruled all issues, we affirm the judgment of the trial court.
(Publish)
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