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Morrell v. Finke11/3/2005
the defendants could not be held responsible for past medical expenses associated with the baby's congenital defects. Id. at 840. The supreme court explained that a plaintiff may recover only for medical expenses specifically shown to result from treatment made necessary by the negligent acts or omissions of the defendant, where such a differentiation is possible. Id.; see also Hilland v. Arnold, 856 S.W.2d 240, 242 (Tex. App.--Texarkana 1993, no writ) (recognizing plaintiff should not recover for medical expenses for treatment of pre-existing condition); Kulms v. Jenkins, 557 S.W.2d 149, 154 (Tex. Civ. App.--Amarillo 1977, writ ref'd n.r.e.) (same). Here, Defendants do not contend that Madeline's medical expenses were incurred for treatment of a congenital defect. Likewise, Defendants do not contend that Madeline incurred medical expenses for treatment of some condition existing prior to Defendants' alleged negligence during Donna's labor and the delivery of Madeline. Instead, here, the jury was free to believe the expert testimony that the nurses' negligence in misreading the strip and failing to take action based on the strip permitted Madeline to suffer increasingly severe inadequate oxygenation so that she was "set up" for PVL and that Dr. Finke's negligence in performing a vaginal forceps delivery instead of a C-section caused the already-oxygen-deprived Madeline irreparable brain damage. Thus, we hold that the Murdock segregation rule--requiring segregation of medical expenses incurred for treatment made necessary by the negligence of the defendant from medical expenses incurred for treatment of other conditions that were not made necessary by the negligence of the defendant--is inapplicable here; evidence existed that all of Madeline's past medical expenses were incurred for treatment made necessary by her hypoxic ischemic encephalopathy that experts testified, and the jury found, resulted from Defendants' negligence.
2. Past Medical Expenses
Defendants claim that the jury's award of $160,000 in past medical expenses is excessive. The jury was asked in special question number 4, " hat sum of money, if any, if paid now in cash, would fairly and reasonably compensate ROBERT MORRELL and DONNA MORRELL for their loss resulting from the injuries of MADELINE MORRELL." Item A under this question instructed the jury to consider,
The reasonable and necessary expenses for hospital care, rehabilitative care, medical care, physical therapy, occupational therapy, speech therapy, attendant/custodial care, medicine, and durable goods in the past.
The jury wrote $160,000 in the blank following this element of damages. Plaintiffs' exhibit 18 documented $69,577.98 in medical expenses for Madeline; medical records affidavits support this amount. See TEX. CIV. PRAC. & REM. CODE ANN.ยง18.001 (Vernon 1997). Additionally, Madeline received physical therapy, speech therapy, and occupational therapy each once a week for years, through the summer of 2000. Donna testified that therapies cost "over $250" per week. Dr. Ater testified that these therapies were necessitated by Madeline's hypoxic ischemic encephalopathy. Six years of weekly physical therapy, speech therapy, and occupational therapy at "over $250" per week would cost over $78,000.
Dr. Cheryl Silver, a neuropsychologist, testified that she has examined Madeline twice. She specializes in treatment planning and teaches graduate students "how to do appropriate and accurate testing for the purpose of diagnosis and for the purpose of treatment planning" for mentally retarded children. Dr. Silver performed diagnostic testing on Madeline and testified that Madeline needs occupational therapy because of her motor problems
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