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Morrell v. Finke11/3/2005
their contention that no cause-in-fact evidence exists in this case, the nurses cite Roark v. Allen, 633 S.W.2d 804 (Tex. 1982), Duff v. Yelin, 751 S.W.2d 175 (Tex. 1988), and Arlington Memorial Hospital Foundation, Inc. v. Baird, 991 S.W.2d 918 (Tex. App.--Fort Worth 1999, pet. denied). In Roark, an expert testified that the child's skull was fractured as a result of the forceps slipping, but no expert testified that the "alleged improper application of the forceps caused them to slip." 633 S.W.2d at 811. In Duff, the plaintiff did not have an expert, but relied instead upon the defendant doctors' testimony. 751 S.W.2d at 176. The defendant doctors would not and did not testify that either of the two possible causes propounded by the plaintiff for his ulnar nerve injury caused the injury within a reasonable medical probability. Id. In Baird, no expert testified that a reused phaco tip caused Baird's eye burn. 991 S.W.2d at 923. In the present case, unlike in Roark, Duff, and Baird, independent, direct expert testimony based on reasonable medical probability exists concerning causation. Dr. Ater testified that in reasonable medical probability Madeline's continued, worsening hypoxic ischemic insults--which Nurse LaMont testified were documented on the fetal heart monitor strip and negligently misread and not acted upon by the nurses--"set up" Madeline for PVL. According to expert testimony by Dr. Ater, if Madeline had not been "set up," the forceps delivery alone would not have caused her PVL. Thus, the expert testimony present in the record before us distinguishes this case from Roark, Duff, and Baird.
Applying the factual sufficiency standard of review to the evidence, the evidence supporting the jury's finding that the nurses' negligence was a proximate cause, including a cause-in-fact, of Madeline's injuries is not so weak nor is the evidence to the contrary so overwhelming that the answer 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 nurses' and hospital's first issue.
B. Past and Future Medical Expenses
Dr. Finke and the clinic, in their third and fourth issues, and the hospital and the nurses in their second issue, complain that the jury's award of $160,000 for Madeline's past medical expenses and of $3,500,000 for Madeline's future medical expenses is supported by factually insufficient evidence. They also argue that the jury's award of $160,000 for past medical expenses is excessive because they contend that Madeline sustained some degree of injury not caused by Dr. Finke's or the nurses' negligence and that the Morrells failed to segregate damages caused by Dr. Finke or the nurses from damages that they did not cause. And, they claim that the jury's award of future medical expenses is excessive because Plaintiffs' expert on future-medical-expenses damages failed to reduce her damages testimony to present value. Alternatively, they ask this court to order a remittitur concerning both of these elements of damages.
1. Segregation
Defendants contend that Plaintiffs were required to segregate past and future medical expenses damages that the nurses allegedly caused from the damages Dr. Finke allegedly caused. Defendants argue that Plaintiffs were required to segregate damage Madeline suffered from hypoxic ischemic insults prior to 7:27 p.m. from the damage she suffered based on Dr. Finke's alleged breaches of the standard of care from 7:27 p.m. onward. In support of this contention, they cite Texarkana Memorial Hospital v. Murdock. 946 S.W.2d at 838.
The Murdock case, however, involved a baby born with congenital defects; the supreme court held that
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