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Collin County v. Rogers5/25/2000
s for pain but did not recommend future treatment. Rogers's primary care physician, Dr. Steven Overn, M.D., referred Rogers to Dr. John J. Regan, M.D., an orthopedic surgeon at the Texas Back Institute, for evaluation and treatment. Regan examined Rogers on February 10, 1995, stated in his report under "RECOMMENDATIONS":
I told the patient that there is nothing further that I have to offer him. He has been through the complete gamut of physical therapy and I don't think that there is any further treatment that I would recommend for his condition.
After Regan's consultation and recommendation, Overn referred Rogers to Presbyterian Hospital for physical therapy for "Agitated Depression with secondary muscle spasms and myofascial [that is, muscle] pain syndrome." The hospital's records show Rogers received treatment on November 22, 1995, with future treatment planned. However, no records show treatment occurred after that date as a result of this referral. In addition, Overn's records showed he recommended that Rogers be referred to another physician for pain management and rehabilitation, even after Regan's recommendation. However, there are no records from another physician showing such treatment occurred or was likely to occur. Further, although Rogers testified he saw a chiropractor monthly from January 1996 through September 1997, no chiropractor's records were admitted.
Although the evidence shows Rogers's condition and symptoms would likely continue in the future, no medical expert recommended future treatment or a continuing course of treatment. Thus, the evidence shows that future medical expenses were possible, but not more likely than not or reasonably probable. See Fibreboard Corp., 813 S.W.2d at 68182 (expert testimony that possibility of medical expenses "less than fifty percent" legally insufficient to show reasonable and necessary future medical expenses in reasonable probability); see also Rosenboom Mach. & Tool, Inc. v. Machala, 995 S.W.2d 817, 828 (Tex. App._Houston [1st Dist.] 1999, pet. denied) (evidence of injury , medical treatment, and continuing pain, from lay and expert witnesses, does not establish reasonable probability of future medical expenses). Therefore, there is no evidence that Rogers will incur, in reasonable probability, medical expense in the future.
CONCLUSION
Because Rogers failed to establish the threshold evidentiary issue, he did not show there is a reasonable probability medical expenses accruing from his injury will be necessary in the future, and we set aside the jury's award of future medical expenses. We resolve Collin County's first issue contesting the legal sufficiency of the evidence in its favor. Because of our resolution of the first issue, it is unnecessary to consider its second issue concerning the factual sufficiency of the evidence. See Tex. R. App. P. 47. We reverse that part of the trial court's modified final judgment awarding Rogers damages for future medical care. In all other respects, that judgment is affirmed.
BARBARA ROSENBERG JUSTICE, ASSIGNED
Do Not Publish
Tex. R. App. P. 47
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