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Wise v. Watson5/9/2000
In this medical malpractice case, Dagmar Wise appeals a take nothing judgment following a jury verdict in favor of Stephen Watson, D.D.S. and Bruce Epker, D.D.S. In three issues, Wise contends the trial court erred in entering judgment on the jury verdict because:
(1) the jury's conclusion that Dr. Watson was fifty percent responsible for her injuries irreconcilably conflicts with the jury's finding that Dr. Watson was not negligent, (2) the jury's conclusion that although Dr. Epker failed to discuss such risks and hazards that would have influenced a reasonable person to refuse treatment, a reasonable person would not have refused such treatment, irreconcilably conflicts with the jury's finding that Dr. Epker was fifty percent responsible for Wise's injuries, and (3) the trial court erred in refusing Wise's request for a broad form submission on negligence. Because we conclude there are no irreconcilable differences in the jury's answers and Wise waived her complaint regarding the negligence questions, we affirm the trial court's judgment.
FACTUAL BACKGROUND
In 1993, Dagmar Wise asked Dr. Stephen Watson, an oral and maxillofacial surgeon who had done some dental work for her, to perform cosmetic surgery on her lips to reduce wrinkles and add fullness. Dr. Watson performed a chemical peel, and Wise had some resulting scar tissue on her lips. In attempting to correct the scar tissue problem, Dr. Watson performed several more procedures which Wise alleged caused more complications and problems. After these procedures, Dr. Watson referred Wise to Dr. Epker, another oral and maxillofacial surgeon, who also performed several procedures, including implanting a gortex strip, on Wise's lips in an attempt to correct the scarring. Alleging that the procedures performed by both doctors resulted in permanent deformation and nerve and muscle damage, and that Dr. Epker failed to inform her of the risks of using the gortex strip, Wise sued both Dr. Watson and Dr. Epker for medical malpractice.
The case was tried to a jury, which answered "no" to the negligence questions submitted regarding both Dr. Watson and Dr. Epker. The trial court entered a take-nothing judgment on the jury verdict. Wise appealed, alleging charge error and that some of the jury's findings were irreconcilable.
IRRECONCILABLE JURY FINDINGS
In reviewing jury findings for conflict, the reviewing court first determines whether the findings are about the same material fact. Bender v. Southern Pac. Transp. Co., 600 S.W.2d 257, 260 (Tex. 1980). A court may not strike down jury answers on the ground of conflict if there is any reasonable basis upon which they can be reconciled; the court must "reconcile apparent conflicts in the jury's finding" if reasonably possible in light of the pleadings and evidence, the manner of submission, and the other findings considered as a whole. Id. Instead of determining whether the findings may reasonably be viewed as conflicting, the reviewing court must determine if there is any reasonably possible basis on which they may be reconciled. Id.
Jury Findings Regarding Dr. Watson
In her first issue, Wise contends the trial court erred in entering judgment on the jury verdict because there were irreconcilable differences in two of the jury's findings. Specifically, Wise argues that the jury's answer to Question 1, asking:
"was the negligence, if any, of Watson, in performing multiple operations on Wise a proximate cause of the injury to Wise?" to which the jury answered "no," was irreconcilable with the jury's answer to Question 4, in which the jury found Dr. Watson fifty percent responsible for Wise's injuri
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