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Merckling v. Curtis8/10/1995
Appellant, David Merckling, sued appellee, Dr. Peter Curtis, for medical malpractice. A jury found that Curtis was not negligent and awarded Merckling no damages. The trial court rendered judgement on the jury's verdict. On appeal, Merckling complains of errors in the jury charge, the sufficiency of the evidence, the exclusion of evidence, and the trial court's refusal to grant leave to file a trial amendment. We affirm.
Background
Merckling injured his back in October 1985 while he was carrying heavy sales cases. He was hospitalized and diagnosed with an acute lumbosacral sprain and spondylolisthesis. He was treated by Dr. Alan Criswell, an orthopedist. Merckling was hospitalized again in January 1986 for back pain. Because he continued to suffer pain in his groin, Criswell referred Merckling to Curtis, a general surgeon. Curtis examined Merckling and concluded that he had indirect hernias on both his left and right sides. Curtis recommended bilateral hernia repairs. On March 25, 1986, he performed the surgery on Merckling at West Houston Hospital.
After the surgery, Merckling continued to complain of pain in the right groin and right testicle. Curtis recommended he see a specialist in pain management, which he did. On December 2, 1986, another general surgeon, Dr. Ira Kasper, performed exploratory surgery on Merckling in the right groin area. Kasper severed the nerves in this area to alleviate Merckling's pain. While his pain improved temporarily, Merckling again complained of pain in the same area. Merckling continued to be treated for the pain in his right groin and testicle. On February 14, 1988, he was admitted to Bellaire Hospital for surgery, again in an attempt to alleviate his pain. During surgery, his right testicle was removed and a prosthesis implanted. In late 1989, he had surgery because the prosthesis had ruptured. In 1987, Merckling sued Curtis for negligence. He alleged that Curtis had negligently entrapped a nerve with a suture during surgery. He alleged the entrapped nerve was the cause of the chronic pain in his right groin and testicle and the cause of his impotency problems. He further alleged that he did not give his informed consent for the hernia operation and that Curtis withheld or misrepresented the risks of the surgery. Trial began on August 31, 1993. At the conclusion of trial, the jury returned a verdict favorable to Curtis, finding no negligence and awarding no damages.
Sufficiency of the Evidence
In points of error 13 through 16, Merckling contends the evidence established as a matter of law the issues of negligence and damages; alternatively, he contends the jury's failure to find negligence and damages was against the great weight and preponderance of the evidence.
a. Standard of Review
When the party with the burden of proof challenges the legal sufficiency to support the jury's failure to find in its favor, it must show that no evidence supports the failure to find and the evidence establishes the desired finding as a matter of law. Ramsey v. Lucky Stores, Inc., 853 S.W.2d 623, 632 (Tex. App. -- Houston [1st Dist.] 1993, writ denied). A party attempting to overcome an adverse fact finding as a matter of law must surmount two hurdles. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989); Neese v. Dietz, 845 S.W.2d 311, 313 (Tex. App. -- Houston [1st Dist.] 1992, writ denied). First, an examination of the record for evidence that supports the jury's finding, while ignoring all evidence to the contrary, must produce no evidence supporting the finding. Sterner, 767 S.W.2d at 690; Neese, 845 S.W.2d at 313. Second, if there is no evidence to support the fact finder's answer,
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