Mitchel Wong, M.D. and Austin Eye Clinic Association v. George W. (Willard) Graham

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-00-00440-CV

Mitchel Wong, M.D. and Austin Eye Clinic Association, Appellants

v.

George W. (Willard) Graham, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT

NO. 98-13467, HONORABLE ERNEST C. GARCIA, JUDGE PRESIDING

Mitchel Wong, M.D., and Austin Eye Clinic Associates appeal a judgment in this

medical negligence case awarding George W. (Willard) Graham more than $700,000 in damages

and prejudgment interest. Appellants challenge the legal and factual sufficiency of the evidence

to support the jury's findings of proximate cause, foreseeability, causation, and damages.

Appellants also challenge the admission of evidence of an unrelated lawsuit. We will affirm the

judgment.

BACKGROUND

On October 2, 1997, Wong, a board-certified ophthalmologist and employee of

Austin Eye Clinic Association, performed cataract surgery on Graham's left eye. Though the

surgery was uneventful, the post-operative period was not. Graham, who was seventy-three years

old at time of trial, developed a series of problems culminating in his losing all sensitivity to light

in the eye. His treatment eventually moved to other doctors and culminated with an additional

surgery--the "Gunderson flap" procedure--that he considers disfiguring. The jury found that

appellants' negligence proximately caused the injury (1) to Graham. It assessed damages for physical

pain and mental anguish, disfigurement, physical impairment, and medical care at $200,000 in the

past and $462,500 in the future; prejudgment interest increased the past damages judgment to

$248,690.53.

DISCUSSION

The disputes on appeal concern Wong's responsibility for Graham's current

condition. Appellants complain about the erroneous admission and misuse of evidence regarding

a lawsuit that Wong filed regarding an unrelated traffic accident. Appellants also contend that

Graham failed to present legally and factually sufficient evidence to prove cause, proximate cause,

foreseeability, and damages. Graham contends Wong caused his damages by not treating him

properly, not making proper notes, and not referring him timely to other physicians. Graham

contends that his loss of vision, disfigurement, and suffering all resulted from Wong's

commissions and omissions.

Evidence of Wong's lawsuit as plaintiff

We begin by examining appellants' complaint concerning the admission and use of

evidence regarding an unrelated lawsuit. Graham elicited testimony from Wong regarding a

lawsuit he filed against a driver who rear-ended him. Wong concedes that the evidence was

admissible to impeach his credibility; he testified at his deposition that he could not recall being

a plaintiff in non-medical lawsuits even though only three months before the deposition he had

filed the car-wreck suit, claiming that his injuries imperiled his career as a surgeon. Though there

was some discussion outside the presence of the jury regarding the purposes for which this

testimony could be elicited, appellants did not request an instruction limiting the jury's use of the

testimony. Evidence admitted without limitation is before the court for all purposes. Tex. R.

Evid. 105; see Owens-Corning Fiberglas Corp. v. Keeton , 922 S.W.2d 658, 660 (Tex.

App.--Austin 1996, writ denied); Cigna Ins. Co. v. Evans , 847 S.W.2d 417, 421 (Tex.

App.--Texarkana 1993, no writ). By not requesting a limiting instruction, appellants waived any

complaint that the testimony was irrelevant to the issue of damages. See Tex. R. Evid. 105; see

also Birchfield v. Texarkana Memorial Hosp. , 747 S.W.2d 361, 365 (Tex. 1987). We find no

reversible error and resolve this issue in favor of Graham.

Sufficiency of the evidence

Standards

Appellants' remaining three issues concern the legal and factual sufficiency of the

evidence. To review the evidence under a legal insufficiency or no-evidence point, we consider

all the evidence in the light most favorable to the prevailing party, indulging every reasonable

inference in that party's favor. See Associated Indem. Corp. v. CAT Contracting, Inc. , 964

S.W.2d 276, 285-86 (Tex. 1998). We will uphold the finding if more than a scintilla of evidence

supports it. See Burroughs Wellcome Co. v. Crye , 907 S.W.2d 497, 499 (Tex. 1995). The

evidence supporting a finding amounts to more than a scintilla if reasonable minds could arrive

at the finding given the facts proved in the particular case. See id. When reviewing the factual

sufficiency of the evidence, we must consider and weigh all the evidence and should set aside the

judgment only if the evidence is so weak or so contrary to the overwhelming weight of the

evidence as to be clearly wrong and unjust. See Cain v. Bain , 709 S.W.2d 175, 176 (Tex. 1986).

We will not substitute our judgment for that of the trier of fact merely because we might have

reached a different conclusion. See Westech Eng'g, Inc. v. Clearwater Constructors, Inc. , 835

S.W.2d 190, 196 (Tex. App.--Austin 1992, no writ).

Plaintiffs in medical negligence cases must prove: (1) a duty by the physician to

act according to a certain standard; (2) a breach of the applicable standard of care; (3) an injury;

and (4) a causal connection between the breach of care and the injury. Ortiz v. Shah , 905 S.W.2d

609, 610 (Tex. App.--Houston [14th Dist.] 1995, writ denied). To show proximate cause,

plaintiffs must show that the doctor caused the injury and that the injury was foreseeable. Bradley

v. Rogers , 879 S.W.2d 947, 953 (Tex. App.--Houston [14th Dist.] 1994, writ denied). Plaintiffs

must show a "reasonable medical probability" that the defendants proximately caused their injuries;

plaintiffs must show by a preponderance of the evidence that the defendants' negligent act or

omission was a substantial factor in bringing about the harm and without which the harm would

not have occurred. Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995); see

also Bradley , 879 S.W.2d at 953-54 . Proof of mere conjecture, speculation, or possibility is

insufficient. Duff v. Yelin , 751 S.W.2d 175, 176 (Tex. 1988). Plaintiffs are not required,

however, to disprove all alternative hypotheses. Bradley , 879 S.W.2d at 954 . A possible cause

becomes probable when the absence of other reasonable causal explanations makes the possible

cause more likely than not the cause of the injury. Id.

Summary of treatments

August 27, 1997 Wong removes a pterygium--a growth on the surface of Graham's left eye.

Wong prescribes an antibiotic steroid eye drop, tapes and patches Graham's

eye. Graham experiences no problem with his vision. Graham's vision in

his left eye improves to 20/50 without correction. His uncorrected vision

in his right eye is 20/60.

Wong also notes that Graham has cataracts in both eyes and entropion with

trichiasis on his left lower lid; Graham's musculature changed, causing his

eyelashes to rub his eye and irritate it.

September 9, 1997 Graham's cornea has healed from the pterygium removal. Graham still has

trichiasis. After Graham declines to have surgery to correct the condition,

Wong removes the troublesome lashes. They schedule surgery to remove

a cataract from his left eye.

September 30, 1997 Graham has a preoperative visit with Wong. Graham's vision tests at 20/50

in both eyes.

October 2, 1997 Wong removes the cataract from Graham's left eye.

October 3, 1997 At the first post-operative visit, Graham has some corneal edema, corneal

swelling, and decreased vision. He could count fingers only at one foot.

Wong prescribed a topical steroid for use three times a day. They set an

appointment for cataract removal from the right eye on October 16,

contingent on improvement in the left eye.

October 8, 1997 Graham's eye is slightly improved and the cornea is clearing. Wong

decreases the frequency of the steroid application to twice daily, but cancels

the October 16 surgery.

October 22, 1997 Graham's sight is slightly improved. He can count fingers two feet away.

His left eye has keratic precipitates with a pupillary membrane, indicating

inflammation in the anterior chamber. Wong notes moderately severe

uveitis, a non-infectious inflammation. Wong concludes that an infection

in the eye, endophthalmitis, is possible, but not probable. To combat the

increased inflammation, Wong increases the frequency of the steroid

application to every waking hour and prescribes an eye-muscle relaxant.

October 27, 1997 Graham's caretaker, Brenda Farrar, calls Wong's office to report that

Graham's eye hurts and is red and draining; she requests something

stronger for the pain. The staff tells Graham to come in as soon as

possible. Wong's son, a board-certified ophthalmologist and Austin Eye

Clinic employee, calls a refill of the eye-drop prescription and leaves a

message for Farrar that she need not bring Graham in for an office visit.

November 4, 1997 Wong examines Graham and notes that Graham's eye had foreign body

sensation, corneal edema, a fibrous pupillary membrane, and hypopyon--an

accumulation of white blood cells in the anterior chamber. Graham could

no longer count fingers, but could detect hand motion. Wong again

discounts the probability of endophthalmitis and concludes that Graham has

sinusitis, for which he prescribes ampicillin. He continues the dosage of

the eye drops and the muscle relaxant.

November 12, 1997 Wong refills prescriptions for ampicillin, eye drops, and muscle relaxants.

November 25, 1997 Graham's vision and condition are essentially unchanged. Wong diagnoses

postoperative uveitis of undetermined etiology.

December 3, 1997 Graham skips an appointment.

December 16, 1997 In addition to the previously noted symptoms, Wong notes keratitis with

corneal deepithelialization. Because topical steroids retard

reepithelialization, Wong reduces eyedrop dosage to four times daily,

continuing the drops to treat the inflammation.

January 13, 1998 Graham's corneal ulcer is infected, the inflammation is worse, and vision

is reduced to light perception only. His pain, redness, and discharge are

worse. Wong refers Graham to Brian Berger, a retinal specialist. Wong

confers by telephone with Berger and faxes him Graham's records.

Berger examines Graham, performing an ultrasound and an anterior

chamber tap. The ultrasound does not indicate endophthalmitis, nor does

the tap produce a bacterial culture; Berger concludes that endophthalmitis

is very unlikely, and ascribes Graham's symptoms to the corneal ulcer.

January 14, 1998 Graham still has light perception only. Wong diagnoses a corneal ulcer

with hypopyon. This is Graham's final visit to Wong.

Graham sought treatment from other doctors. The corneal ulcer had almost perforated his eye.

The new doctors eventually performed a Gunderson flap procedure, which involves pulling the

conjunctiva, the mucus layer of the eye, over the cornea. The procedure saved his eye, but not

its vision; Graham has no light perception in his left eye.

Specific contentions of insufficiency

Appellants submit many reasons that the evidence is legally and factually

insufficient. They argue Graham did not show that they were responsible for his damages; that

is, he did not show reasonable medical probability of proximate causation and foreseeability.

They also argue that he failed to segregate which damages, if any, resulted from appellants' care.

They further argue that the evidence does not support the amount of damages awarded.

Graham's theory of the case is that appellants caused his loss of vision by not

adequately diagnosing and treating his condition. He contends that Wong should have diagnosed

endophthalmitis and treated him or referred him for treatment based on that diagnosis.

Alternatively he argues that the only possible other cause was uveitis, which Wong failed to

adequately diagnose and treat or refer him for that condition. He contends that his loss of vision

is a foreseeable result of the inadequate treatment. Graham contends that the evidence was legally

and factually sufficient to support every necessary element.

Causation and foreseeability of loss of light perception. Graham's experts, C.

Bradley Bowman and Richard Ruiz both testified that Graham's loss of vision resulted from

undiagnosed endophthalmitis. (2) They agreed that, following cataract surgery, infection should be

a primary concern, particularly when the post-operative patient shows unexpectedly severe

inflammation or pain. They testified that endophthalmitis must be a leading diagnosis until ruled

out because untreated infections will lead to loss of vision; early treatment is critical. Ruiz

testified that Wong should have taken a culture of Graham's vitreous and injected antibiotics into

his eye on October 22 even before the culture results returned. Ruiz said oral and topical

antibiotics do not get adequate concentrations into the eye. Bowman, Ruiz, and James Everett

Key, II testified that pupillary membranes like Graham developed are mainly or likely caused by

endophthalmitis. They pointed to other signs of infection such as impaired vision and keratic

precipitates--clumps of white blood cells next to the cornea. Bowman testified that by January the

problems at the front of the eye, possibly caused by too lengthy use of steroid eye drops, misled

Berger and precluded him from visually inspecting the back of the eye where the infection was

destroying Graham's vision. Bowman discounts the results of Berger's ultrasound and anterior

eye tap, asserting (with Berger's agreement) that ultrasounds often fail to diagnose endophthalmitis

and that the anterior tap is less likely to show an infection of the vitreous at the back of the eye.

Berger and Ruiz agreed that suspected endophthalmitis cases cause positive cultures for bacteria

only about half the time; Ruiz said anterior aqueous taps are even less accurate. Berger also

conceded that topical steroids like Graham was using can mask signs of infection for short periods

of time.

Bowman testified that diagnosing uveitis before ruling out endophthalmitis is below

the standard of care. He testified that uveitis in a post-operative cataract patient would be

extraordinarily coincidental; he also testified that a patient whose eye was as nonresponsive to

uveitis treatment as Graham's eye should have gotten much more extensive testing and treatment

by November. Bowman said that cases in which uveitis led to total vision loss were

extraordinarily rare; neither he nor Wong had seen a patient lose all light perception as a result

of uveitis.

Bowman and Ruiz were also critical of administrative aspects of Wong's treatment

of Graham. They testified that Wong should have seen Graham more frequently than every two

to three weeks; Ruiz described this frequency as "woefully inadequate." Between the October

surgery and the January referral to Berger, Wong did not perform diagnostic tests, change the eye

drops (other than the frequency of dosage), see Graham more frequently than two week intervals

(though at least one of the gaps was due to Graham's no-show at appointment), call another

doctor, or refer him to another doctor. Bowman and Ruiz testified that Wong's records were

subpar, failing to note complaints of pain. Bowman was particularly bothered by the absence from

the charts of a telephone message taken by Austin Eye Clinic Association staff from Graham's

caretaker requesting more pain medication because Graham was "still" in pain--indicating present

and past pain which Bowman felt was not adequately recorded in the charts. Berger noted that

Graham had a three-day history of pain. Bowman testified that the lack of consistent pain notation

misled Berger into believing that Graham's pain and problems in January arose from the corneal

ulcer.

Though Graham primarily contends that he suffered from untreated

endophthalmitis, he contends alternatively that Wong did not adequately treat him for uveitis. (3)

Uveitis, however, should respond to topical steroids. Bowman testified that it should have cleared

within three to five days following the October 22 visit when Wong increased the eyedrop dose

to hourly. It did not. Instead, it worsened. Graham's condition was worse than any of the

testifying doctors had seen in a post-operative cataract patient. Nevertheless, Wong did not use

the more aggressive treatments (full work-up, chest x-ray, blood tests, other modes of steroid

delivery, and more frequent examinations) that Bowman testified were the standard of care for

nonresponsive uveitis. Though Wong may have reasonably not given Graham oral steroids

because of the potential side effects, Berger testified that persistent uveitis can be treated with

steroid ointments and steroid injections near the eye to avoid the systemic side effects of oral

steroids. Berger agreed that Graham should have been examined more frequently because he was

not responding to treatment. Ruiz agreed that Wong's treatment of Graham was completely

inadequate if the condition was uveitis. He agreed that uveitis could have caused the vision loss.

Wong testified he did nothing inappropriate that led to Graham's vision loss. He

concluded that Graham did not have endophthalmitis and diagnosed Graham's highly abnormal

post-operative condition as uveitis; Berger and Key agreed that endophthalmitis was highly

unlikely. Wong treated Graham with steroid eyedrops. He testified that he or his staff would have

written down a complaint of pain had Graham voiced it; in fact, Wong or his staff noted on the

charts more than once that Graham was suffering either pain or foreign body sensation. Berger's

January examination revealed that Graham's eye was "quiet"--it lacked the level of inflammation

consonant with infection of the vitreous. He tapped the anterior part of the eye because that is the

portion in which his examination showed hypopyon (pus). Both the ultrasound and the tap showed

no infection. Key testified that Graham lost his eyesight to persistent uveitis ocular inflammation.

Key testified that Graham did not respond to any type of therapy so there was no indication

whether more aggressive treatment would have helped. Wong agreed with that assessment,

testifying that ninety-nine percent of patients would have healed from the ulcer; even aggressive

antibiotic treatment did not heal the ulcer until the Gunderson flap procedure.

There was also evidence that Graham was not the most diligent in obtaining care.

He may not have communicated his complaints clearly. He reported that he did not always

administer the eyedrops with the frequency Wong prescribed. He may have abraded his cornea

with eyelashes or a paper towel. More than once, whether due to transportation difficulties or

other reasons, he prolonged the gap between office visits slightly beyond the three weeks Wong

recommended.

Appellants also argue that, if there is blame, perhaps Berger or subsequent treating

doctors should bear at least some of it. Graham could perceive the difference between light and

darkness when Wong referred him to Berger, and yet Graham lost even that perception after the

referral. With the exception of the October phone message regarding pain, Berger had the same

information from Wong that Bowman used in formulating his opinion, yet agreed with Wong's

rejection of endophthalmitis after two examinations of Graham.

We conclude that legally and factually sufficient evidence support the jury's

findings that appellants proximately caused Graham's total loss of vision and that such loss was

foreseeable. Evidence supported a conclusion that either untreated endophthalmitis or mistreated

uveitis caused Graham's vision loss and that neither a corneal ulcer nor macular degeneration

would result in loss of light perception.

Wong agreed that "it's more likely than not that [a patient] will lose sight and go

to no light perception in an untreated infection in the eye." Endophthalmitis is a risk following

cataract surgery. Graham exhibited the hallmarks of endophthalmitis from the outset of the post-operative period: pain, inflammation, and decreased vision. There was evidence that appellants'

frequency of examination, diagnosis, charting, and treatment were below the standard of care.

Though Wong considered infection at every examination, he waited three months before taking

additional steps to rule out infection despite the poor condition of Graham's eye. Graham never

received the intraocular injection of antibiotics--the standard of care for endophthalmitis--that

routinely wipe out almost all bacteria in the eye.

If Graham's condition was uveitis, evidence supports a finding that appellants' care

was inadequate; despite Graham's nonresponsiveness to treatment, appellants neither significantly

altered his treatment nor increased the frequency of examination. There also was evidence that

Wong's charts did not include all the necessary elements and that a telephoned complaint of

persistent pain was not included in the information transmitted to Berger.

Though Graham may have had some light perception when referred to Berger, there

was evidence that Graham's corneal ulcer (which evidence supports finding was caused or

worsened by the long-term use of steroid eyedrops), coupled with Wong's spotty charting, led

Berger to focus on the ulcer. Evidence supports a finding that the severity of the ulcer left

subsequent doctors with no reasonable choice but to perform the Gunderson flap.

More than a scintilla of evidence supports the findings that Graham's loss of vision

was foreseeable and was proximately caused by appellants' actions and omissions; the evidence

is not so weak or so contrary to the overwhelming weight of the evidence as to be clearly wrong

and unjust. The existence of expert testimony controverting other expert testimony presents a

choice for the jury to make, but does not require reversal.

Causation and foreseeability of disfigurement. Similarly, sufficient evidence

supports findings that Graham's disfigurement was foreseeable and proximately caused by Wong's

treatment of the ulcer. The disfigurement is a result of the deteriorated condition of the eye and

the Gunderson flap procedure. Wong first noted deepithelialization on December 16. He reduced

the frequency of use of topical steroid eyedrops from hourly to four times daily. Records from

a January 21 examination show that an abrasion on the cornea came from wiping with a paper

towel. Though admitting that an eye ulcer could potentially progress exactly as Graham's had

with proper treatment, Bowman testified that Wong's treatment of the ulcer probably led to the

disfiguring surgery. Bowman testified that "the continued use of steroids without appropriate

antibiotic treatment could have caused and probably caused this ulcer to become worse because

it wasn't treated appropriately." (Emphasis added.) Berger agreed that hourly application of

steroid eyedrops foreseeably increases the risk of a corneal ulcer. Ruiz testified that continuing

the use of the topical steroids after finding the ulcer made it worse. He and Bowman said that the

standard of care required taking a culture of the eye, stopping the steroid eye drop, and starting

an antibiotic eyedrop--none of which Wong did. The steroids would cause the eye surface to thin

to near perforation. The dramatic thinning of the eye caused the subsequent doctors to perform

the Gunderson flap procedure to save the eye, resulting in the disfigurement about which Graham

complains. Legally and factually sufficient evidence supports the conclusion that appellants

foreseeably and proximately caused the disfigurement.

Damages. Appellants' remaining issues concern damages. Appellants contend that

insufficient evidence supported a link between their conduct and Graham's loss of vision and

damages. They also contend that insufficient evidence supports the amount of damages. We first

will examine the sufficiency of the link between appellants' treatment and the damages awarded

to Graham.

Segregation . Appellants first complain that Graham failed to segregate the damages

caused by appellants from damages caused by other persons and other factors. The damage award

was made in response to a broad-form question asking for a single sum to compensate for physical

pain and mental anguish, disfigurement, physical impairment, and medical care; the question

requested separate amounts for past damages and future damages. Appellants complain about the

proof of the damages, not the form of the question. (4)

A plaintiff must prove that the negligent actions for which the plaintiff sues

necessitated the medical expenses for which the plaintiff seeks recovery. Texarkana Memorial

Hosp., Inc. v. Murdock , 946 S.W.2d 836, 840-41 (Tex. 1997). In Murdock , an infant died after

months of treatments for multiple problems--some present at birth and some caused by hospital

malpractice. Id. at 837 . The jury awarded $250,000 to the decedent's estate (not appealed) and

$500,000 to the decedent's mother for medical expenses out of a total bill of $748,710.44. Id.

The supreme court held that the court of appeals could not properly have held the jury's award was

supported by factually sufficient evidence because the plaintiffs had not introduced evidence about

which treatments addressed the malpractice-induced condition; the supreme court rejected the

argument that the jury's paring of the requested award showed they deducted charges for

treatments not resulting from the negligence. Id. at 840 . The supreme court held that a plaintiff

must provide expert medical testimony to explain what medical procedures treated the negligently

created condition. Id . at 841. The court wrote that medical expenses were susceptible to such

detailed proof, unlike "nebulous measures of damages such as pain and suffering where the jury

has broad discretion when fixing an amount to award." Id .

A significant distinction between Murdock and this appeal is the nature of the

damages challenged. The Murdock appeal concerned only the medical expenses award, but

medical expenses in this case were at most $10,545.74 (5) of the $200,000 past damage award. This

damage award is thus much less susceptible of quantification than the award in Murdock .

Another distinction is that the contribution from sources of injury other than the

defendants' negligence is less than in Murdock . In that case, the decedent suffered from many

congenital problems besides those arising from the hospital's negligence. The medical expenses

could be divided between the treatments for the negligence-induced condition and the congenital

problems. Here, all damages flow from the disfigurement of and loss of light perception in

Graham's left eye. We have concluded above that sufficient evidence supports a finding that

inadequacies in appellants' treatment of Graham, their monitoring of his condition, and their

charting of his progress was a cause of both injuries. That finding was not overwhelmed by

evidence regarding other possible sources of injury such as Graham's poor healing ability, Graham

scratching his cornea with a tissue, macular degeneration, and treatment by other doctors. All

these had countervailing considerations. Testimony that Graham was a bad healer was blunted by

the lack of more aggressive or different treatments in the early stages; the only certainty is that

Graham did not respond well to the treatments given. Regardless of the ulcer's cause, there was

evidence that treatment of the eye's problems (particularly the continued use of steroid eye drops)

prevented healing of the ulcer. The only evidence of macular degeneration in his left eye was that

he had it in his right eye (the ramifications of that for his left eye were disputed); macular

degeneration undisputedly had not robbed and would not rob Graham of light perception in his

right eye. Though Graham might have recovered some sight when referred to other doctors, there

is evidence that appellants' previous treatment of Graham and charting inadequacies frustrated that

possibility. Thus, the jury reasonably could have found that all of the measures of Graham's

injuries flowed from appellants' treatment of him.

Further, if sufficient evidence connects appellants to the injuries, we must presume

that the jury followed its instructions and awarded damages only for injuries caused by appellants'

negligence. See Turner, Collie & Braden, Inc. v. Brook hollow, Inc. , 642 S.W.2d 160, 167 (Tex.

1982); see also Phillips v. Phillips , 820 S.W.2d 785, 787, n.2 (Tex. 1991). In Phillips , the

supreme court affirmed an appellate court's rendition of an attorney's fees award in addition to

the actual damages award. The supreme court rejected the defendant's argument that the jury must

have included the attorney's fee award as part of the plaintiff's damages, writing the following:

The trial court properly did not ask the jury to include in its determination of

Martha's actual damages a reasonable fee for legal services necessary to her

prosecution of the case. See Hammonds v. Hammonds , 158 Tex. 516 , 313 S.W.2d

603, 605 (1958). We must assume that the jury followed the trial court's

instructions and answered the question put to them. See Turner, Collie & Braden

v. Brookhollow, Inc. , 642 S.W.2d 160, 167 (Tex.1982). Given that assumption,

we must conclude that the jury's answer of $300,000 to the trial court's question

did not include attorney fees.

Harry argues that, logically, the jury must have arrived at their $300,000 finding

by adding $37,585 accounting fees which Martha testified she incurred to the

stipulated $250,000 in attorney fees. However plausible Harry's explanation of the

jury's reasoning process may be, it cannot substitute for the jury's finding. What

the jury found, not why the jury found it, is the relevant inquiry absent jury

misconduct. First Nat'l Bank v. Zimmerman , 442 S.W.2d 674, 678 (Tex.1969).

Id . Here, the jury was asked first if appellants' negligence caused Graham's injury, then what sum

of money would fairly compensate Graham for injuries that resulted from the occurrence in

question. If sufficient evidence supports the award, we must presume that the jury followed the

court's instructions and excluded damages, if any, caused by other sources.

Elements of damages . We will examine the evidence regarding the elements of the

damage award: disfigurement, impairment, physical pain and mental anguish, and medical care.

Sufficient evidence supports an award for disfigurement. Disfigurement is that

which impairs or injures the beauty, symmetry, or appearance of a person by rendering him

unsightly, misshapen, imperfect, or deformed. See Transit Management Co. v. Sanchez , 886

S.W.2d 823, 826 (Tex. App.--San Antonio 1994, no writ). The damages compensate for the

suffering, including humiliation, induced in the mind of the injured party by contemplating his

changed physical condition. See Houston Lighting & Power v. Reed , 365 S.W.2d 26, 30 (Tex.

Civ. App.--Houston 1963, writ ref'd n.r.e.). As discussed above, during appellants' three months

of treatment, Graham's eye was inflamed and oozing pus; sufficient evidence showed appellants'

treatments were inadequate. Now, the eye is dim and somewhat shriveled. Appellants argue that

they did not perform the Gunderson flap that permanently altered his eye, and point to Graham's

deposition testimony that his feelings had not changed since the surgery. As discussed above,

however, evidence supports a finding that the Gunderson flap procedure was the inexorable result

of appellants' negligence--the other option was rupture of the eye. One of Graham's caretakers

said that Graham's remarkably blue eyes were his one source of vanity, and that now he is

embarrassed for anyone to see his eye because he thinks he looks like a rooster pecked out his eye.

In trial, he described his eye as disgraceful. Further, the jury saw Graham's eye for eight days

and could judge for itself whether the eye was disfigured.

Sufficient evidence showed that Graham's loss of vision and disfigurement

constricted his range of activities. Damages for impairment may be awarded for restriction of

activities, but the limitation must be distinct from other damage measures such as pain and lost

income; examples include limitations on the ability to mow lawns, engage in strenuous tasks,

drive, walk without assistance, perform routine car maintenance, or play recreational sports.

Southern Pacific Transp. Co. v. Harlow , 729 S.W.2d 946, 950 (Tex. App.--Corpus Christi 1987,

writ denied). Appellants argue that Graham's activities were curtailed before the surgery, pointing

to the fact that his mother willed her property to some younger people on condition that they care

for him for his life. They also note Graham's continued ability to cook and clean inside his home

as evidence that he is not impaired. There was evidence, however, that the loss of vision has

limited his activities. Before his surgery, he played the fiddle, changed watch batteries, cleaned

up his yard, took trash to a dump, mowed, repaired lawnmowers and a tractor, and fed cattle. He

drove himself five miles to Marble Falls and ran errands; for longer trips, he depended on others

even before the surgery. He hunted, plowed and cut a field of maize, helped install a deer fence,

walked the ranch to find newborn calves, and walked to visit friends; all of this involved walking

over uneven ground. Now, however, his lack of depth perception and vision severely limits his

activities. He no longer plays the fiddle because he cannot see adequately to string it. He has

trouble getting around in unfamiliar places. He loses his balance and falls, so he is extremely

reluctant to go outside his home. He no longer helps with outside chores or drives himself

anywhere. Sufficient evidence supports an award for impairment.

Sufficient evidence also supports Graham's complaints of pain. Though he had

days without pain during his treatment by appellants, his eye was inflamed for more than three

months. Graham also complained of a dull ache behind his eye. It eventually oozed pus. The

lack of improvement and deterioration of his condition have been linked to appellants' treatment

of him. Wong prescribed pain medications in addition to over-the-counter pain medications. Loss

of depth perception from his loss of vision caused him to fall and suffer scrapes and bruises.

During trial, Graham showed an injury from such a fall.

Sufficient evidence also supports Graham's claims of mental anguish. To sustain

such a claim, the record must contain evidence of substantial disruption of daily routine or a high

degree of mental pain and distress that is more than mere worry, anxiety, vexation,

embarrassment, or anger. Parkway Co. v. Woodruff , 901 S.W.2d 434, 444 (Tex. 1995).

Appellants tout Graham's deposition testimony that nothing about his feelings or mental health had

changed. At trial, however, he testified that his eye's condition ruined his life. Others testified

that he seemed depressed. One of his caretakers testified that Graham said she might as well

knock him over the head, that his life was over because he could not see. This experience makes

him fearful of medical care in general, and adamant against surgery to treat the cataract in his right

eye. He is afraid to walk outside and does not like people to see his eye despite reassurances that

the eye is not repulsive. That fear and embarrassment play roles in the restriction of his activity

shows his confinement has a mental component. Though some of the evidence advanced by

Graham (i.e., worries about being sent to a nursing home if something happened to his caretakers)

may not be severe enough or tied closely enough to these injuries to be compensable, anxiety and

depression that leave a previously active man essentially homebound, embarrassed to be seen in

public, fearful of medical treatment, and opining that his life is over show a substantial disruption

of his daily routine and a high degree of mental strain.

Appellants' challenge to the evidence of medical expenses is somewhat different.

The district court admitted Graham's evidence of his medical bills based on Bowman's testimony

that the charges were reasonable and necessary. Appellants contended that some of the charges

were neither reasonable nor necessary because Medicare paid reduced charges and appellants could

not collect the difference from anyone; thus, they argued, Graham cannot recover that which was

never paid. The district court refused to admit appellants' evidence of the reduced Medicare

payments, but allowed appellants to make an offer of proof. On appeal, appellants challenge, not

the exclusion of their evidence, but the reasonableness and necessity of the expenses awarded.

Evidence of the Medicare payments and reductions are a collateral source of

payment, one that the court did not have to admit. The collateral source rule is a long-standing

tenet of Texas law that the defendant should not get the benefit of payment arrangements that

might reduce or eliminate plaintiff's out-of-pocket expenses. See City of Fort Worth v. Barlow ,

313 S.W.2d 906, 911 (Tex. Civ. App.--Fort Worth 1958, writ ref'd n.r.e.) (medical expense

award not reduced by plaintiff's option to receive cheaper or free care in veterans hospital); see

also Texas & Pacific Ry. Co. v. Levi & Bro. , 59 Tex. 674, 676 (1883) (damages not offset by

plaintiff's insurance compensation); Century Papers, Inc. v. Perrino , 551 S.W.2d 507, 511 (Tex.

Civ. App.--Texarkana 1977, writ ref'd n.r.e.) (wrongful discharge damages not reduced by

unemployment benefits). (6) Thus, if the treatment and charges are reasonable and necessary to treat

the patient, recovery is permitted regardless of what was actually paid or will be paid for the

service.

Bowman's testimony that the charges were reasonable and necessary was

uncontroverted. As discussed above, evidence supports a finding that Graham's post-operative

condition was worsened by inadequate medical care, prompting these medical expenses. Even if

Graham caused the initial scratch of his cornea, sufficient evidence supports finding that

appellants' treatment exacerbated the injury.

Damage totals. The jury has wide latitude in determining the amount of a personal

injury damage award. Baptist Memorial Hosp. Sys. v. Smith , 822 S.W.2d 67, 78 (Tex. App.--San

Antonio 1991, writ denied). Matters of pain and suffering are speculative and not subject to

precise mathematical calculations; determining those amounts is particularly within the province

of the jury. Lee v. Huntsville Livestock Servs., Inc. , 934 S.W.2d 158, 160-61 (Tex.

App.--Houston [14th Dist.] 1996, no writ); Mercy Hosp. v. Rios , 776 S.W.2d 626, 636 (Tex.

App.--San Antonio 1989, writ denied). In determining future medical expenses, the jury has wide

discretion to consider the nature of the injury, the medical care rendered in the past, and the

condition of the injured party at the time of the trial. Southwest Texas Coors, Inc. v. Morales , 948

S.W.2d 948, 952 (Tex. App.--San Antonio 1997, no writ).

We perceive no basis on which we can overturn or reduce the $200,000 award for

past damages. As discussed above, almost ninety percent (and perhaps more) of the past damages

award was intended to compensate for physical pain and mental anguish, disfigurement, physical

impairment--damages deemed "nebulous" by the supreme court in Murdock . See 946 S.W.2d at

841 . Graham suffered pain during treatment and continues to injure himself because of the result

of that treatment. He was and remains disfigured. His activities were restricted by both his

impairment and the mental anguish associated with it.

Nor do we perceive a basis on which we can overturn or reduce the $462,500 award

for future damages. Though Graham may not suffer as much pain and medical expenses in the

future as a result of his treatment by appellants, his impairment and disfigurement will continue,

as will his resulting mental anguish. Appellants' suggestion that he could possibly get a cornea

transplant at most shifts the damages. Assuming appellant overcame his dread of medical

procedures caused by his previous treatment, the transplant definitely would increase his future

medical expenses and would decrease his other damages only if the procedure worked; and some

witnesses doubted that the vision in or appearance of Graham's left eye could ever be improved.

Graham's statistical life expectancy at time of trial was 10.4 years, but his mother lived eighteen

years beyond his age at trial. Using those measures as the range, the jury's award for future

damages amounts to between roughly $25,700 per year for eighteen years and $44,500 for ten

years. We do not find this award without support or overwhelmed by opposing evidence.

CONCLUSION

Both sides in this case presented evidence that could support a verdict in their favor.

Resolution of such evidentiary clashes is the province of the jury, subject to reversal only if the

appellate court determines that the jury's findings either are supported by no evidence or are

against the great weight and preponderance of the evidence. Having resolved all issues in favor

of Graham, we affirm the judgment of the district court.

J. Woodfin Jones, Justice

Before Justices Kidd, Yeakel and Jones *

Affirmed

Filed: February 15, 2001

Do Not Publish

* Before J. Woodfin Jones, Justice (former), Third Court of Appeals, sitting by assignment. See

Tex. Gov't Code Ann. § 75.003 (a)(1) (West 1998).

1. The jury charge does not specify what injury (blindness or disfigurement).

2. Both Ruiz and Bowman are board certified ophthalmologists. Ruiz holds a chair in

ophthalmology at the University of Texas Medical School in Houston. He subspecializes in

retinas. He has seen fifty cases of endophthalmitis. Bowman is an examiner for the

ophthalmology certification board. He subspecializes in corneal diseases and has treated about

seventy patients with endophthalmitis. Only Ruiz examined Graham, and that was after the

Gunderson flap procedure.

3. Wong contends in his reply brief that Graham raises this alternative theory for the first time

on appeal. Graham's third amended petition alleges that Wong "failed to properly diagnose or

treat Plaintiff's condition" without specifying what condition. At trial, Graham's attorneys

interrogated witnesses regarding the adequacy of Wong's treatment of uveitis. In closing

arguments, Graham's attorneys discussed whether Wong adequately treated uveitis.

4. Not only did appellants not object to the submitted question, they proposed a question with

the same lump-sum format (though their request for additional directions preceding the question

was rejected).

5. Whether Graham can recover that full amount is a separate issue on appeal.

6. Appellants concede that no Texas court has held in a published opinion that Medicare

payments are excluded from the collateral source rule. They cite Louisiana cases as persuasive

authority for that proposition. See Suhor v. Lagasse , 770 So.2d 422 (La. Ct. App. 4th Cir. 2000);

Terrell v. Nanda , 759 So. 2d 1026, 1030-31 (La. Ct. App. 2d Cir. 2000) (addressing Medicaid).

Even if we were persuaded to carve out an exception for past medical expenses, the absence of

certainty that Medicare or Medicaid will cover future expenses would, in our view, limit the

exception's scope to past medical expenses.

s intended to compensate for physical pain and mental anguish, disfigurement, physical

impairment--damages deemed "nebulous" by the supreme court in Murdock . See 946 S.W.2d at

841 . Graham suffered pain during treatment and continues to injure himself because of the result

of that treatment. He was and remains disfigured. His activities were restricted by both his

impairment and the mental anguish associated with it.

Nor do we perceive a basis on which we can overturn or reduce the $462,500 award

for future damages. Though Graham may not suffer as much pain and medical expenses in the

future as a result of his treatment by appellants, his impairment and disfigurement will continue,

as will his resulting mental anguish. Appellants' suggestion that he could possibly get a cornea

transplant at most shifts the damages. Assuming appellant overcame his dread of medical

procedures caused by his previous treatment, the transplant definitely would increase his future

medical expenses and would decrease his other damages only if the procedure worked; and some

witnesses doubted that the vision in or appearance of Graham's left eye could ever be improved.

Graham's statistical life expectancy at time of trial was 10.4 years, but his mother lived eighteen

years beyond his age at trial. Using those measures as the range, the jury's award for future

damages amounts to between roughly $25,700 per year for eighteen years and $44,500 for ten

years. We do not find this award without support or overwhelmed by opposing evidence.

CONCLUSION

Both sides in this case presented evidence that could support a verdict in their favor.

Resolution of such evidentiary clashes is the province of the jury, subject to reversal only if the

appellate court determines that the jury's findings either are supported by no evidence or are

against the great weight and preponderance of the evidence. Having resolved all issues in favor

of Graham, we