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Owens v. Perez2/3/2005
This is a medical malpractice case. Appellee, Domingo Perez ("Perez"), as next friend of Maria San Juana Morin ("Morin"), a non compos mentis, sued appellant, Edwin Owens, M.D. ("Dr. Owens"), and others after Morin, suffered a third-degree burn to her arm during or after out-patient eyelid surgery. A jury found that Dr. Owens, the anesthesiologist during the surgery, was thirty percent responsible for the negligence that caused the burn and found damages totaling $500,000. In four issues, Dr. Owens contends: (1) the evidence is legally and factually insufficient to show that he caused the burn; (2) the trial court abused its discretion in excluding the testimony of Margie Cornwell, M.D. ("Dr. Cornwell"); (3) the evidence is legally and factually insufficient to support the medical damages awarded by the jury; and (4) the trial court abused its discretion in appointing an ad litem to represent Morin's interests and taxing ad litem fees against him. We reform the trial court's judgment and, as reformed, affirm.
I. Sufficiency of the Evidence
In his first issue, Dr. Owens contends the evidence is legally and factually insufficient to establish that he breached the standard of care or that he proximately caused appellee's burn.
A. Standard of Review
When we review a "no evidence" or legal sufficiency of the evidence issue, we must view the evidence in a light that tends to support the finding of the disputed fact and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001). A no evidence issue will be sustained when the record discloses that: (1) there is a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence conclusively establishes the opposite of the vital fact. Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). If there is more than a scintilla of evidence to support the finding, the no evidence challenge fails. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987). When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is not more than a scintilla and, in legal effect, is no evidence. Kindred v. Con-Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). More than a scintilla of evidence exists where the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Havner, 953 S.W.2d at 711.
When we review an "insufficient evidence" or factual sufficiency of the evidence issue, we consider, weigh and examine all of the evidence which supports or undermines the jury's finding. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). We review the evidence, keeping in mind that it is the jury's role, not ours, to judge the credibility of the evidence, to assign the weight to be given to testimony, and to resolve inconsistencies within or conflicts among the witnesses' testimony. Wilhelm v. Flores, 133 S.W.3d 726, 732 (Tex. App.---Corpus Christi 2003, pet. filed). We set aside the verdict only when we find that the evidence standing alone is too weak to support the finding or that the finding is so against the overwhelming weight of the evidence that it is manifestly unjust and clearly wrong. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996).
B. Medical Malpractice
To prevail, a plaintiff in a medical malpractice case must prove the following four elements: (1) a duty by the
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