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Morrell v. Finke11/3/2005
Tex. App.--Fort Worth June 2, 2005, no pet. h.) (not yet reported); Warner v. Hurt, 834 S.W.2d 404, 408-09 (Tex. App.--Houston [14th Dist.] 1992, no writ). It is particularly within the jury's province to weigh opinion evidence and the judgment of experts. Cruz, 44 S.W.3d at 647 (citing Pilkington v. Kornell, 822 S.W.2d 223, 230 (Tex. App.--Dallas 1991, writ denied)). The jury decides which expert witness to credit. Id.
When we review evidence, we are not free to reweigh the evidence and set aside a jury verdict merely because we feel a different result is more reasonable. Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex. 1986) (op. on reh'g). We may not merely substitute our opinion for that of the trier of fact and determine that we would reach a different conclusion. Cruz, 44 S.W.3d at 647; Merckling v. Curtis, 911 S.W.2d 759, 763 (Tex. App.--Houston [1st Dist.] 1995, writ denied). We cannot sit as a thirteenth juror, and we cannot under any circumstances retry the case. See Warner, 834 S.W.2d at 408-09.
Here, the jury was free to believe Plaintiffs' experts, Drs. Ater, Rice, and Jones, instead of the defense experts. The jury was free to believe Plaintiffs' theory of the case instead of the defensive theory of the case. See, e.g., id. Plaintiffs' negligence and cause-in-fact evidence concerning Dr. Finke is not so weak, nor Defendants' controverting evidence so overwhelming that the jury's findings should be set aside and a new trial ordered. See Mar. Overseas Corp., 971 S.W.2d at 406-07; Garza, 395 S.W.2d at 823.
We overrule the first and second issues of Dr. Finke and the clinic.
4. The Nurses--Cause-in-Fact
The nurses contend that legally insufficient evidence exists, under Lenger, of the cause-in-fact element of proximate cause to support the jury's negligence finding against them. Again, we do not detail all of the evidence of the nurses' alleged breaches of the standard of care because the nurses do not challenge this aspect of the jury's negligence findings against them. We do briefly summarize some of this evidence, however, because it forms the basis for the jury's cause-in-fact finding.
Nurse Walker testified that when Dr. Finke was out of the room, "I am responsible for that strip. I'm responsible to know how that baby is responding to labor." Rose Fenton, the charge nurse during Madeline's delivery, testified that hospital policies required Nurse Walker to classify Madeline's strip as reassuring or nonreassuring, to assess fetal distress, and to assess the need for a C-section. Nurse Walker testified that she is to comply with the hospital's policies and with the standard of care in discharging her nursing duties. Nurse Walker testified that if circumstances dictated, she could set things in motion for a delivery by C-section. Nurse LaMont testified, frame by frame, about Madeline's fetal heart monitor strip. She testified that it was nonreassuring from 5:10 p.m. on and documented fetal distress requiring immediate action by 7:00 p.m. Nurse LaMont explained that the patterns documented on Madeline's strip indicate a lack of oxygenation and said that it was the nurses responsibility to monitor and ensure adequate fetal oxygenation. Finally, Nurse LaMont testified that the nurses breached the nursing standard of care in numerous respects, by failing to accurately assess the fetal heart monitor strip; failing to accurately intervene based on the problems documented on the strip, including failing to notify Dr. Finke of the significant decel at 7:15 p.m.; failing to provide timely care to Donna, including failing to prepare Donna for a C-section; failing to access the chain of command to get timely care for Madeline and Donna, spe
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