Court of Appeals of Texas,
Eastland.
TEXAS HEALTH ENTERPRISES, INC., Appellant
v.
Belinda LOPEZ and Ricky Lopez, Appellees.
No. 11-93-326-CV.
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May 26, 1994.
Attorneys & Firms
Roy B. Longacre, for Texas Health Enterprises, Inc.
Mark S. Stewart and Allan T. Curry, for Belinda Lopez and Ricky Lopez.
OPINION
BOB DICKENSON, Justice.
*1 Belinda Lopez and her husband, Ricky Lopez, sued Belinda’s former employer, Texas Health Enterprises, Inc., for negligence.1 Belinda alleged that she injured her left shoulder twice in 1990 while in the course of her employment. The jury found that Texas Health’s negligence regarding Belinda’s second accident proximately caused damages in the amount of $47,500. Texas Health appeals. We affirm.
The Jury’s Verdict
The questions which were submitted to the jury and the jury’s answers read in relevant part as shown:
[1] Did the negligence, if any, of Texas Health Enterprises, Inc. proximately cause the occurrence in question on or about March 21, 1990? No
[2] Did the negligence, if any, of Texas Health Enterprises, Inc. proximately cause the occurrence in question on June 24, 1990? Yes
[3] What sum of money, if paid now in cash, would fairly and reasonably compensate Plaintiff, Belinda Lopez, for her injuries? $47,500
[4] What sum of money, if paid now in cash, would fairly and reasonably compensate Plaintiff, Ricky Lopez, for his injuries? 0
Points of Error
Appellant asserts in three points of error that: (Point One) the trial court erred in submitting the jury question concerning the second accident and in denying its motion for judgment n.o.v. because there was no evidence that the second accident was the proximate cause of Belinda’s injuries; (Point Two) the trial court erred in failing to grant the motion for new trial because the evidence was insufficient to support the jury’s answer to Question No. 2; and (Point Three) the trial court erred in admitting various medical bills into evidence.
Background Facts
Belinda Lopez was employed as a nurse’s aide at Canterbury Villa Nursing Home in De Leon, a facility which is owned and operated by appellant. On March 21, 1990, she injured her shoulder when she lifted a patient from his bed without help. She reported the incident and went to the doctor a few days later. She returned to work and was put on “shower duty.” While on shower duty on June 24, Belinda injured her shoulder again when she slipped on the wet floor and tried to catch herself with her left hand. She immediately reported the incident. She was not able to return to work as a nurse’s aide. Belinda returned to work in September, but she was only able to do light duty work, such as passing out ice to the patients in the nursing home. In October, Belinda’s supervisor told her that she had to return to full duty as a nurse’s aide; that, if she did not do so, she would not have a job; and that Texas Health was not going to pay any more of her medical bills. Belinda was fired because she could not return to full duty as a nurse’s aide at that time.
Belinda saw several doctors in the course of trying to alleviate the pain and diagnose the problem. Two doctors told Belinda that she needed surgery. Belinda had to postpone this surgery until February 23, 1993, because Texas Health had stopped paying her medical bills.
*2 The jury did not find that Texas Health was negligent regarding the March occurrence, but the jury did find that Texas Health was negligent regarding the June occurrence and that such negligence was a proximate cause of Belinda’s damages.
Proximate Cause of Injury
In the first two points of error, Texas Health complains about the lack of proof that Belinda’s second accident proximately caused any of her injuries. The two elements of proximate cause are “cause in fact” and “foreseeability.” Travis v. City of Mesquite, 830 S.W.2d 94 at 98 (Tex.1992). Cause in fact means that “the act or omission was a substantial factor in bringing about the injury, and without it harm would not have occurred.” Travis v. City of Mesquite, supra at 98. We note that there may be more than one proximate cause and that “[a]ll persons whose negligent conduct contributes to the injury, proximately causing the injury, are liable.” Travis v. City of Mesquite, supra at 98. Texas Health does not dispute the element of foreseeability.
In order to review the no evidence point, we must consider only the evidence and inferences that tend to support the verdict, disregarding any evidence or inferences to the contrary. If there is any evidence of probative force to support the verdict, the no evidence point must be overruled. Juliette Fowler Homes, Inc. v. Welch Associates, Inc., 793 S.W.2d 660 at 666 (Tex.1990); In re King’s Estate, 244 S.W.2d 660 (Tex.1951). In order to review the insufficient evidence point, we must review all of the evidence and determine whether the verdict is so contrary to the overwhelming weight of the evidence as to be “clearly wrong and unjust.” Cain v. Bain, 709 S.W.2d 175 (Tex.1986); In re King’s Estate, supra.
The record shows that Belinda testified that she had never had any shoulder problems before March 21, 1990, and that “shower duty” involved as much lifting as her previous duties as a nurse’s aide. On June 24, after Belinda slipped and pulled her shoulder again, she fell to her knees and started crying because she “couldn’t stand the pain.” Belinda testified that the second accident was worse than the first accident and that it hurt her worse. She testified that she was in too much pain to return to work after she re-injured her left shoulder in June.
Dr. Robert M. Chouteau, D.O., was the only one of Belinda’s doctors to testify.2 Dr. Chouteau is the doctor who ultimately performed the surgery on Belinda’s shoulder. He testified that, in his opinion based upon medical probability, the cause of Belinda’s “impingement syndrome” was the March accident. The medical history of Belinda’s injury that was contained in his records included only the March accident; it did not mention the June accident. When Dr. Chouteau was given a hypothetical question with additional information concerning the second accident, he stated that: “It would just back up as far as the opinion, that she still had the impingement syndrome secondary to the original injury.” Dr. Chouteau testified that Belinda had been unable to work because of the impingement syndrome but that she should be able to return to work in six to twelve months. On cross-examination, Dr. Chouteau testified that, due to an “arthritic process,” it is possible that Belinda would have had the same complaint and required the same surgery even if she had not been injured at work. However, he testified further that, given Belinda’s medical history, her shoulder injury was probably caused by the trauma from her accident. Dr. R. Fusselman, a radiologist at Hendrick Medical Center who examined Belinda on August 6, 1990, also came to the conclusion that Belinda’s injury was “most likely post traumatic in nature.”
*3 We hold that there was some evidence that the second accident caused Belinda’s injuries. We also hold that the jury’s finding that Texas Health’s negligence concerning the second accident was a proximate cause of Belinda’s injuries was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. The evidence showed that Belinda re-injured her shoulder in the second accident, that her shoulder hurt worse after the second accident, that she was able to work after the first accident but not after the second accident, and that her injury was probably caused by the trauma to her shoulder. See and compare Lenger v. Physician’s General Hospital, Inc., 455 S.W.2d 703 (Tex.1970), and Insurance Company of North America v. Kneten, 440 S.W.2d 52 (Tex .1969). The jury was free to determine from all the evidence in this case that Texas Health was negligent concerning the second accident and that such negligence was a proximate cause which contributed to Belinda’s shoulder injury. See Zippy Properties, Inc. v. Boyd, 667 S.W.2d 312 at 315 (Tex.App.-Waco 1984, writ ref’d n.r.e.); and compare Orkin Exterminating Company, Inc. v. Davis, 620 S.W.2d 734 at 736 (Tex.Civ.App.-Dallas 1981, writ ref’d n.r.e.) (where there was no medical testimony concerning the cause of the injuries). The first and second points of error are overruled.
Medical Bills
In the third point, Texas Health argues that the trial court erred in admitting various medical bills because there was no evidence that they were incurred as a result of the accidents in question. In order to recover for past medical expenses, there must be proof that the expenses incurred were reasonable and necessary. Orkin Exterminating Company, Inc. v. Davis, supra at 737. The record shows that Belinda testified that the procedures reflected in the bills were performed by the various doctors and hospitals as a result of her shoulder injury, which was caused by the work-related accidents. The record also shows that each of the objected-to exhibits contains an affidavit signed by the doctor or the custodian of records which states that the “services were necessary.” See TEX. CIV. PRAC. & REM. CODE ANN. § 18.001 (Vernon 1986 & Supp.1994); Six Flags Over Texas, Inc. v. Parker, 759 S.W.2d 758 at 761 (Tex.App.-Fort Worth 1988, no writ). We hold that the trial court did not err in admitting these exhibits. The third point of error is overruled.
The judgment of the trial court is affirmed.
Footnotes |
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1 |
Texas Health did not have workers’ compensation insurance. See former TEX.REV.CIV.STAT.ANN. art. 8306, §§ 1 and 4, which were in effect at the time Belinda sustained her injuries. |
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2 |
The medical records contain a note from Quirico Torres, M.D., of The Neurological Clinic in Abilene that: “[I]n June of 1990 she slipped in a shower at work, caught herself with her left arm, and aggravated her injury.” There is a reference in the medical records from C.W. Benedict, Jr., D.C., Benedict Chiropractic Office of Granbury that: “She rehurt the shoulder when she slipped and almost fell while in the shower at the Nursing Home.” There is also a reference in the medical records from Metroplex Orthopedics, P.A. of Mesquite that: “Was lifting patient, felt pull in left shoulder. After that she slipped in shower @ work while wiping down whirlpool. Tried to catch herself w left hand.” There is also a statement in the disability evaluation performed by Alfonso E. Pino, M.D., of De Leon for the Texas Rehabilitation Commission that: “[Lopez] reinjured the shoulder again at work when she slipped on a wet floor .” |
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