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Morrell v. Finke11/3/2005
ts not entitled to damages for loss of consortium based on serious permanent injuries to child who has not died). Accordingly, we overrule the Morrells' first and second issues.
B. Bystander Recovery for Mental Anguish
In their third and fourth issues, the Morrells contend that the trial court erred by granting a JNOV on their claim against all Defendants for bystander recovery for past mental anguish as the result of witnessing their child's serious permanent injury at birth. The Morrells rely on Birchfield v. Texarkana Memorial Hospital, 747 S.W.2d 361, 364-65 (Tex. 1987), arguing that the supreme court in that case recognized a parent's entitlement to mental anguish resulting from serious permanent injury to a child by letting stand the jury's award of that element of damages.
Appellees respond that the propriety under Texas law of recovering mental anguish damages was not challenged in Birchfield and that the supreme court did not address such a right in that case by parents for injury to a child. Appellees contend that the supreme court directly addressed and rejected a bystander claim by a husband for mental anguish damages arising from his wife's injury in connection with an emergency C-section delivery in Edinburg Hospital Authority v. Trevino, 941 S.W.2d 76, 81 (Tex. 1997) (holding that "Texas' bystander cause of action precludes bystander recovery in medical malpractice cases"). We agree with Appellees that the Morrells' claim is controlled by Edinburg, which precludes recovery of bystander mental anguish damages in a medical malpractice case as a matter of law. Accordingly, we overrule the Morrells' third and fourth issues.
We hold that the trial court correctly granted Defendants' motions for JNOV and correctly declined to include in the judgment the $4.5 million dollars in damages found by the jury for Robert's and Donna's loss of consortium and mental anguish.
V. Dr. Finke and the Clinic's Appeal and the Hospital and Nurses'Appeal
A. Sufficiency of Negligence and Cause-in-Fact Evidence
Dr. Finke and the clinic claim in their first issue that the evidence is legally and factually insufficient to establish that any negligence by Dr. Finke was the cause-in-fact of any of Madeline's injuries and in their second issue that no testimony exists as to the standard of care for Dr. Finke or whether she breached that standard when she returned to Donna's delivery room after delivering another baby. The nurses and hospital likewise complain in their first issue that there is legally and factually insufficient evidence that their negligence was a cause-in-fact of Madeline's injuries.
1. Standards of Review
In determining a "no evidence" issue we are to consider only the evidence and inferences that tend to support the finding of the disputed fact--unless a reasonable juror could not give credit to such evidence or inferences. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We are to disregard all evidence and inferences to the contrary to the disputed fact--unless a reasonable juror could not disregard such evidence or inferences. Id. But we are not to weigh the evidence or make our own credibility determinations. See id.; Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001); Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). Anything more than a scintilla of evidence is legally sufficient to support the finding. Cont'l Coffee, 937 S.W.2d at 450; Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996). More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing concl
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Texas Personal Injury Attorneys
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