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Lions Eye Bank of Texas v. Perry9/6/2001
Appellant, Lions Eye Bank of Texas (the "Eye Bank"), appeals from the judgment entered in favor of appellees, Levi V. Perry, Sr., Eula Perry, Christopher Perry, and Patricia Perry (the "Perrys"), on their claim that the Eye Bank was negligent in performing a whole eye enuclueation on the deceased, Levi V. Perry, Jr. ("Levi"). We conclude the Perrys cannot recover mental anguish damages on their claim for negligence in this case, and reverse the judgment of the trial court and render judgment that the Perrys take nothing on their negligence and gross negligence claims against the Eye Bank.
I. BACKGROUND
Levi, who was the son of Levi Perry, Sr. and Eula Perry and the older brother of Christopher Perry and Patricia Perry, was jogging in MacGregor Park in Houston at approximately 9:45 p.m., on May 31, 1994, when he sustained four gunshot wounds to the head during the course of a robbery. Levi was taken to Ben Taub Hospital where he was pronounced dead upon arrival. At the hospital, Levi Perry, Sr. signed a "Harris County Hospital District Consent for Post-mortem Procedures" form, refusing all organ and tissue donation, including eyes and corneal tissue, on the previously expressed desires of Levi. Levi's body was transferred to the Harris County Medical Examiner's Office for the performance of an autopsy.
During the viewing of Levi's body at the funeral home a few days later, Levi's sister, Angela Perry, who is an ophthalmologist, noticed that Levi's eye lids did not look normal. When Angela investigated by prying open Levi's eyes, she discovered that Levi's entire eyes had been removed from the sockets and corneal caps had been inserted in place of the eyes. This whole eye enucleation occurred without the Perrys' permission and against Levi's wishes. Upon inquiry, someone from the Medical Examiner's Officer told Angela that Levi's eyes were not in their sockets at the time of the autopsy and that its office is not involved in the harvesting of organs for donation. An employee of the funeral home told Angela that Levi's eyes were not present when Levi's body arrived at the funeral home. From these conversations, Angela concluded the Eye Bank had removed Levi's eyes.
Eye Bank technician, Gabriel Hernandez, testified that with the permission of the Medical Examiner, he took Levi's corneal tissue prior to the autopsy, and he did not see anything in the medical records indicating that Levi's family had not consented to the removal of the corneal tissue. The Eye Bank maintains that Hernandez took only the corneal tissue and did not take the eyes in their entirety.
The Perrys sued the Eye Bank for negligence, gross negligence, and intentional infliction of emotional distress, and sought mental anguish and punitive damages. At trial, the jury found the Eye Bank had negligently enucleated Levi's eyes. The jury awarded actual damages for mental anguish to Levy Perry, Sr. in the amount of $50,000, Eula Perry in the amount of $30,000, Christopher Perry in the amount of $15,000, and Patricia Perry in the amount of $15,000. The jury further awarded the Perrys, collectively, $200,000 in exemplary damages on their gross negligence claim. The jury, however, did not find in favor of the Perrys on their claim for intentional infliction of emotional distress. The trial court entered judgment in accordance with the jury's verdict.
In this appeal, the Eye Bank asserts: (1) the Perrys cannot recover for negligent infliction of mental anguish; (2) the evidence is legally and factually insufficient to support the Perrys' recovery of mental anguish damages; (3) Christopher Perry and Patricia Perry do not have standing to bring this lawsuit; (4) the evidence i
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