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Guerra v. Wilson2/29/2000
bability has been explained to me as meaning greater than 50 percent. I can't say that it's a lot more than 50 percent. It -- this is not an emergency situation that eminently requires surgery; but if 50-50 is the number that we're given, then I would say we're probably on the high side of the 50 for him down the road needing a surgical intervention for this should he fail to respond to conservative treatment.
(emphasis added). Yet, Hilton also testified further:
He has gone -- undergone an extensive conservative course [of treatment] and that's the reason I think that he has probably a better than 50-50 chance of needing surgery in the future, because of what he's done so far.
(emphasis added). Dr. Thomas Raymond also opined, "It is very possible that in the future [Wilson] may require back surgery."
Dr. Hilton testified regarding the extent and cost of future surgery to remove the herniated disc and repair Wilson's spine:
The surgery would consist of removing -- making a bone window in the back so that the surgeon could access the spinal canal, removing disc on each side; and given the degree of pain he's had...I would recommend some type of fusion.... It's significant surgery. It takes approximately two and half to three hours to perform. And not uncommon the patient will require physical therapy after several months of wearing a brace to accomplish the fusion, and it can be six months to a year before the patient is really back to what they consider a functional state.
Hilton explained that the scope of surgery (the number of "levels" involved) would depend, in part, on the damage that the surgeon discovers and how long Wilson waits before undergoing such treatment. He indicated a range in cost from $49,350 to $70,500.
In the present case, the jury was able to consider the nature of Wilson's injury , the treatment that Wilson underwent prior to trial in an attempt to mitigate the need for surgery, the need for surgery in the future as exceeding fifty percent, and testimony regarding the cost of surgery. The jury was also able to consider contrary evidence of Wilson's "non-compliance" during certain phases of his physical therapy. The evidence in favor of Wilson's future medical care expenses is legally sufficient to support the jury's award of $50,000; when all of the evidence is viewed together, it is factually sufficient as well. See Blankenship v. Mirick, 984 S.W.2d 771, 778 (Tex. App.-Waco 1999, pet. denied) (stating that " f there is any probative evidence which supports the jury's finding of future medical expenses, then the award must be upheld") (citations omitted); cf. Rosenboom, 995 S.W.2d at 828 (reversing a trial court's judgment awarding damages for future medical care when "there was no testimony establishing that in all reasonable probability that [the plaintiff] would require future medical care and the cost of such care").
4. Cumulative Error
Guerra argues that the trial court's errant inclusion of improper evidence and exclusion of proper evidence constitutes cumulative error. Because we conclude that the trial court did not err as to any of the issues Guerra has raised for our review, there can be no cumulation of error.
Conclusion
We affirm the trial court's judgment.
PHIL HARDBERGER CHIEF JUSTICE
DO NOT PUBLISH
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