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HCRA of Texas11/3/2005
blank." Saenz v. Fid. & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996).
As long as sufficient probative evidence exists to support the jury's verdict, neither the reviewing court nor the trial court is entitled to substitute its judgment for that of the jury. Larson v. Cactus Util. Co., 730 S.W.2d 640, 641 (Tex. 1987); J. Wigglesworth Co. v. Peeples, 985 S.W.2d 659, 665 (Tex. App.--Fort Worth 1999, pet. denied). A verdict will be set aside on appeal only where the record clearly indicates that the award was based on passion, prejudice, or improper motive, or is so excessive as to shock the conscience. Transit Mgmt. Co. of Laredo v. Sanchez, 886 S.W.2d 823, 826 (Tex. App.--San Antonio 1994, no writ); Weingarten, Inc. v. Gauthier, 305 S.W.2d 181, 197 (Tex. Civ. App.--Beaumont 1957, no writ).
HCRA's challenge to the jury's physical pain and mental anguish award is limited to three sentences and simply claims that the record is devoid of any evidence that Lloyd suffered pain or anguish. Lloyd's family saw the decubitus ulcers on Lloyd's back, which medical records and expert testimony established were stage three, necrotic, and oozing blood. Lloyd, who was fully conscious, complained to his family that his back hurt, indicating he was experiencing physical pain. Further, Lloyd was malnourished, causing his body to break down muscle to meet its caloric needs. The jury could have reasonably inferred from this evidence that Lloyd experienced physical discomfort, pain, and suffering from the injuries that the jury found proximately caused by HCRA. See City of Keller, 168 S.W.3d at 827; Bradford, 48 S.W.3d at 754. We overrule the portion of HCRA's third issue challenging the legal sufficiency of the evidence to support the jury's damage award of $75,000 for physical pain and mental anguish.
We now turn to the factual sufficiency challenge. Even though each case must be judged on its own unique facts, it is proper to consider other approved awards in similar cases to determine if an award for pain and suffering is excessive. Sunbridge Healthcare Corp., 160 S.W.3d at 250. In Sunbridge, the court held that an award of one million dollars was not excessive to compensate the plaintiff for physical pain and mental anguish suffered from injuries sustained in falls. Id. In Cresthaven Nursing Residence v. Freeman, the court that an award of one million dollars--remitted down from four million dollars--was not excessive to compensate the plaintiff for physical pain and mental anguish suffered from two broken legs sustained in a fall. 134 S.W.3d 214, 228-232 (Tex. App.--Amarillo 2003, no pet.). In Guzman v. Guajardo, the court held that an award of six hundred thousand dollars was not excessive to compensate a young boy who endured fifteen minutes of pain sustained in a car accident before dying. 761 S.W.2d 506, 512 (Tex. App.--Corpus Christi 1988, writ denied). Having thoroughly reviewed the record and applying the appropriate standard of review, we conclude that the evidence is factually sufficient to support the jury's damage award of $75,000 for Lloyd's physical pain and mental anguish. We overrule HCRA's third issue.
D. The Jury's Finding that the Harm to Lloyd Resulted From Malice Attributable to HCRA
Special question number 7 of the court's charge asked the jury whether it found by clear and convincing evidence that the harm to Lloyd resulted from malice attributable to HCRA. The charge then defined clear and convincing evidence and malice and instructed the jury that in order for malice to be attributable to HCRA it must find that Nurse Burns was employed by HCRA in a managerial capacity and was acting in the scope of that capacity. The charge explained t
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