Summary
In Villarreal, a divided court concluded that a certain sum was the "basement" of what the jury could award because the defendant's own expert witness conceded that the medical treatments helped the plaintiff's injured condition and that the amounts charged for the medical services were reasonable.
Summary of this case from Thompson v. DavisOpinion
No. 04-18-00444-CV
05-08-2019
David VILLARREAL, Appellant v. Jonabelle Josiane TIMMS, Appellee
Gregg R. Miller, San Antonio, Thomas F. Nye, Portia J. Bott, Megan Kemp, for Appellee. Tom Hall, for Appellant.
Gregg R. Miller, San Antonio, Thomas F. Nye, Portia J. Bott, Megan Kemp, for Appellee.
Tom Hall, for Appellant.
Sitting: Sandee Bryan Marion, Chief Justice, Luz Elena D. Chapa, Justice, Beth Watkins, Justice
Opinion by: Beth Watkins, Justice
This appeal arises out of a jury verdict rendered in favor of David Villarreal in an automobile accident case. Villarreal contends the jury's findings as to certain measures of damages are against the great weight and preponderance of the evidence. We reverse the trial court's judgment and remand for a new trial.
BACKGROUND
Jonabelle Josiane Timms rear ended Villarreal's vehicle. Villarreal suffered a broken bone and a herniated disc in his neck, sought medical treatment, and was examined by Dr. Elizabeth Clark. Thereafter, Villarreal sought treatment from Dr. Neil Boecking, a chiropractor, and Dr. Manish Patel, an orthopedic surgeon. Dr. Patel referred Villarreal to Dr. Ed Cerday for injections in his neck and recommended a referral for a spine surgery evaluation if the injections did not relieve the pain. Dr. Cerday provided three epidural injections to Villarreal. During the course of the injections by Dr. Cerday, Villarreal had his last visit with Dr. Boecking. Dr. Boecking noted future surgical intervention might be required due to the nature of Villarreal's injury. Ultimately, Villarreal underwent surgery for a single-level neck fusion, which was performed by Dr. Adam Bruggeman.
Villarreal filed a negligence action against Timms. With regard to damages, Villarreal sought, among other things, recovery for his past medical expenses. In support of this claim, Villarreal introduced and the trial court admitted into evidence an exhibit showing medical bills of $131,821.46. In addition, Dr. Patel testified the accident necessitated all of the medical treatment Villarreal received. As to whether all of the charges were reasonable, Dr. Patel advised he was not involved with regard to any charges other than his own.
In response, Timms presented the testimony of Dr. Joel Jenne, an orthopedic spine surgeon. Although Dr. Jenne testified he would not have recommended surgery, he admitted the medical records suggest Villarreal improved after the surgery. With regard to the $131,821.46 in medical bills, Dr. Jenne testified the amounts were not the reasonable and customary collected amounts for the treatment Villarreal received because: (1) the charges for the injections were $10,200 too high; (2) the charges for the MRIs were $3,250 too high; (3) the charge for the surgical hospital was $53,000 too high; and (4) the charge for the surgeon's fee was $20,000 too high.
At the conclusion of the evidence, the jury found Timms's negligence proximately caused the accident. In response to what sum of money would fairly and reasonably compensate Villarreal for his injuries that resulted from the accident, the jury responded:
a. Physical pain and mental anguish sustained in the past.
ANSWER: $40,000.00
b. Physical pain and mental anguish that, in reasonable probability, David Villarreal will sustain in the future.
ANSWER: $0.00
c. Physical impairment sustained in the past.
ANSWER: $10,000.00
d. Physical impairment that, in reasonable probability, David Villarreal will sustain in the future.
ANSWER: $0.00
e. Medical care expenses incurred in the past.
ANSWER: $35,650.00
f. Loss of earning capacity sustained in the past.
ANSWER: $14,000.00
g. Loss of earning capacity that, that, in reasonable probability, David Villarreal will sustain in the future.
ANSWER: $0.00
The trial court signed a judgment on the jury's verdict and subsequently denied Villarreal's motion for new trial. Villarreal appeals.
ANALYSIS
On appeal, Villarreal contends the evidence is factually insufficient to support the jury's findings of zero damages with regard to his future physical pain and mental anguish as well as his future physical impairment. Likewise, he contends the evidence is factually insufficient to support the jury's award of $35,650 for past medical expenses, arguing the jury should have awarded at least $45,371.46. Because our decision with regard to the award of past medical expenses is dispositive under Rule 44.1(b) of the Texas Rules of Appellate Procedure, we need not review the sufficiency of the future damage awards. See TEX. R. APP. P. 44.1(b).
Standard of Review
"When a party attacks the factual sufficiency of an adverse finding on an issue on which [he] has the burden of proof, [he] must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence." Dow Chem. Co. v. Francis , 46 S.W.3d 237, 242 (Tex. 2001) ; see Perez v. Arredondo , 452 S.W.3d 847, 860 (Tex. App.—San Antonio 2014, no pet.). "The court of appeals must consider and weigh all of the evidence, and can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust." Dow Chem. Co. , 46 S.W.3d at 242 ; see United Parcel Serv., Inc. v. Rankin , 468 S.W.3d 609, 615 (Tex. App.—San Antonio 2015, pet. denied). "[I]n conducting a factual sufficiency review, a court must not merely substitute its judgment for that of the jury" because "the jury is the sole judge of the credibility of witnesses and the weight to be given to their testimony." Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757, 761 (Tex. 2003) ; Rankin , 468 S.W.3d at 615.
Application
The jury awarded Villarreal past medical expenses of $35,650. Villarreal contends the jury should have awarded at least $45,371.46 even if it subtracted the specific amounts Dr. Jenne testified were higher than the reasonable and usual charges. Based on our review of all of the evidence, we agree the jury's award is so against the great weight and preponderance of the evidence as to be manifestly unjust. See Dow Chem. Co. , 46 S.W.3d at 242.
A plaintiff may prove medical expenses were reasonable and necessary by: (1) presenting expert testimony, or (2) by submitting affidavits that comply with Texas Civil Practice and Remedies Code section 18.001. See, e.g., Gunn v. McCoy , 554 S.W.3d 645, 672 (Tex. 2018). Consistent with section 18.001, the jury received copies of Villarreal's medical bills showing the cost of his medical and surgical treatment was $131,821.46. Thus, this is the highest amount the jury could have awarded for Villarreal's past medical treatment—it represents the "ceiling" on that award. See, e.g., Reliance Steel & Aluminum Co. v. Sevcik , 267 S.W.3d 867, 871–72 (Tex. 2008) (approving appellate court's reversal of jury award of $40,000 in past medical expenses where evidence showed only $33,985.23 in past medical expenses).
Based on the expert testimony of Dr. Jenne, Timms asked the jury to award less than $131,821.46. Dr. Jenne testified the reasonable cost for:
• epidural injections are $400 each—not $12,450 for three injections, as the bills showed—which, along with the other uncontested charges, would yield reasonable and necessary medical bills from Injury Medical Group of $11,700;
• MRIs are $500 to $600 each—not $4,450 for two as described by Villarreal's medical bills—which would yield minimum reasonable and necessary medical bills from injury Diagnostic Services of $1,000;
• the hospital's fee is $18,000—not $71,340.89—which would yield reasonable and necessary medical bills from Foundation Surgical Hospital of San Antonio of $18,000;
• the surgeon's fee is $4,400 to $5,100—not $26,533.22—which would yield minimum reasonable and necessary medical bills from Adam J.
Bruggeman, M.D. of the Texas Spine Care Center of $4,400.
Dr. Jenne did not criticize any other amounts or take issue with the remaining medical bills of $6,180 from Pro-Care Medical Group or $367.35 for medications. These amounts total $41,647.35. Thus, this is the lowest amount the jury could have awarded for Villarreal's past medical treatment—it represents the "basement" on that award. See, e.g., Golden Eagle Archery , 116 S.W.3d at 775 (noting award of no damages for pain and suffering should be reversed on appeal if there is objective, undisputed evidence of significant injury jury did not compensate for in some other category of damages); see also Horton v. Denny's Inc. , 128 S.W.3d 256, 262 (Tex. App.—Tyler 2003, pet. denied) (finding award of $1,000 in past damages against great weight and preponderance of evidence where undisputed evidence showed medical bills of $4,717.25 directly related to plaintiff's objective injury); Downing v. Uniroyal, Inc. , 451 S.W.2d 279, 283 (Tex. Civ. App.—Dallas 1970, no writ) (holding, in case involving objective evidence of injury, award of $12 for past medical expenses "manifestly too small" when evidence showed expenses of $600).
The dissenting opinion relies on a statement by Dr. Jenne that the cost of Villarreal's past medical treatment was "high" and appears to construe Dr. Jenne's single statement as a criticism of the total amount charged. However, when considered in context, we hold Dr. Jenne's statement is merely a limitation on his opinion about which particular past medical expenses were high.
When asked if $131,821.46 was a reasonable and customary amount for the treatment Villarreal received, Dr. Jenne stated, "They're high, sir." He then immediately described the particulars of how "they're high:"
• about "10,200 bucks over charge" for the epidural injections ;
• 3,250 "bucks too high" for the MRIs;
• "essentially 53,000 less than" the $71,340 for the hospital's fee; and
• "20 grand too high" for the surgeon's fee.
This testimony explained the particular past medical expenses Dr. Jenne found "high." Dr. Jenne's testimony does not suggest that even if the specific line items he described were reduced, Villarreal's past medical expenses were still generally too high. Timms's attorney agreed, asking the jury to "take all of the numbers that were too high and subtract them from the $131,000, you end up with $45,371.46 ... this is the usual and customary collections."
The discrepancy between $45,371.46 and $41,647.35 appears to result from the fact that Dr. Jenne provided a range of customary charges.
The standard of review requires this court to examine the entire record to determine if some evidence supports the jury's finding. Because $41,647.35 is the lowest amount supported by the record, this court must set the "basement" at that amount. The fact that the jury awarded a lower amount than even Timms requested indicates that the jury answered this question not based on "only the evidence introduced [at trial] under oath," as the court's charge instructed, but based on something else. See, e.g., Jackson , 116 S.W.3d at 771 (recognizing appellate court must presume jury followed instructions unless record demonstrates otherwise); see also Gulf States Utils. Co. v. Low , 79 S.W.3d 561, 566 (Tex. 2002) (noting jury generally has discretion to award damages within range of evidence presented at trial). Because the lone "high, sir" statement, when considered in context, did not lower the "basement" amount the jury could award, we conclude the jury's past medical damage award is against the great weight and preponderance of the evidence. See Dow Chem. Co. , 46 S.W.3d at 242.
An appellate court may not reverse and remand for a new trial on damages alone when, as here, liability was contested in the trial court. See TEX. R. APP. P. 44.1(b) (prohibiting appellate court from ordering separate trial solely on unliquidated damages if liability is contested). We are therefore required to remand the entire case for a new trial. See Estrada v. Dillon , 44 S.W.3d 558, 562 (Tex. 2001) (per curiam). For that reason, we need not address Villarreal's remaining arguments. See TEX. R. APP. P. 47.1.
CONCLUSION
Because the evidence is factually insufficient to support the jury's award of $35,650 in past medical expenses, we sustain that portion of Villarreal's appellate issue. We therefore reverse the trial court's judgment and remand the matter for a new trial on liability and damages. See TEX. R. APP. P. 44.1(b) ; Estrada , 44 S.W.3d at 562.
Dissenting Opinion by: Sandee Bryan Marion, Chief Justice
DISSENTING OPINION
Dissenting Opinion by: Sandee Bryan Marion, Chief Justice
"The trier of fact is given wide discretion to award damages anywhere within the range of evidence presented at trial." Pope v. Gaffney , No. 04-03-00456-CV, 2004 WL 1732325, at *2 (Tex. App.—San Antonio Aug. 4, 2004, no pet.). In exercising this discretion, "[t]he jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimony." Id . Because I believe the jury's award of $35,650 for past medical expenses was within the range of the evidence as the jury could have weighed it, I respectfully dissent.
BACKGROUND
Three separate elements are required to be proven to support a recovery for past medical expenses: "(1) the amount of the charges for the medical expenses; (2) the reasonableness of the charges; and (3) the necessity of the charges." Singleton v. Bowman , 557 S.W.3d 711, 716 (Tex. App.—Texarkana 2018, pet. denied) (internal quotation omitted). Because the jury is required to consider both the "reasonableness" and the "necessity" of the charges, I first summarize the evidence presented at trial as to both of these elements.
On June 9, 2015, Jonabelle Josiane Timms rear ended Villarreal's vehicle during rush hour, stop-and-go traffic on a highway. Timms was driving a Volkswagen Jetta while Villarreal was driving a Ford F-150 truck. Timms estimated she was traveling about 10-15 mph at the time of impact, while Villarreal estimated Timms was traveling about 30 mph. Photographs showing the damage to the vehicles were introduced into evidence.
The extent of Villarreal's injuries caused by the accident was disputed at trial. Timms testified Villarreal stated he was fine at the scene of the accident, and the police report indicated Villarreal did not sustain any injuries. Timms testified Villarreal was walking around at the accident scene, and Villarreal testified he drove from the accident scene to a restaurant where he ate dinner with a friend. At trial, Villarreal testified he told Timms and the police officer he was a little stiff at the accident scene but was not hurt. On June 10, 2015, the day after the accident, Villarreal testified he woke with a "total stiff neck" and was hardly able to get out of bed. Villarreal sought medical treatment and was examined by Dr. Elizabeth Clark, who he had not previously seen for medical treatment. The history section of Dr. Clark's progress note reported Villarreal was non-ambulatory after the accident, and the onset of his pain and stiffness was acute. Villarreal testified he did not tell Dr. Clark he was non-ambulatory. Dr. Clark referred Villarreal to physical therapy and instructed him to take 600 mg of ibuprofen for pain and to follow up as needed. No other medication was prescribed, and the evidence at trial established 600 mg was the equivalent of three over-the-counter ibuprofen. The progress note did not show that any restrictions were placed on Villarreal's activities; however, Villarreal testified he was placed on light duty by her.
On June 11, 2015, Villarreal was examined by a chiropractor, Dr. Neil Boecking. The history section of the progress note reported Villarreal felt a pop in his neck as soon as the impact occurred, and he felt pain shoot from his neck to his shoulder. Dr. Boecking's plan of care was twelve visits for physical therapy and chiropractic care. No medication was prescribed, and no restrictions were placed on Villarreal's activities; however, Villarreal again testified he was placed on light duty.
On July 14, 2015, Villarreal was examined by Dr. Manish Patel, an orthopedic surgeon, who reviewed an MRI performed on July 7, 2015. Dr. Patel referred Villarreal for injections in his neck and recommended a referral for a spine surgery evaluation if the injections did not relieve the pain. No medication was prescribed, and no restrictions were placed on Villarreal's activities; however, Villarreal testified he was placed on light duty by Dr. Patel.
On July 20, 2015, Villarreal was examined by Dr. Ed Cerday who performed a series of three injections. The history section of Dr. Cerday's report stated Villarreal was hit from behind by a larger truck that lifted his car from behind; however, Villarreal testified he did not report that information to Dr. Cerday. Villarreal agreed Dr. Cerday did not restrict his activities.
During the course of the injections by Dr. Cerday, Villarreal had his last visit with Dr. Boecking on August 6, 2015. Dr. Boecking noted future surgical intervention may be required due to the nature of Villarreal's injury; however, he also noted Villarreal had completed all conservative care measures and was released from care. Dr. Boecking did not place any restrictions on Villarreal's activities.
On August 11, 2015, Villarreal underwent a nerve conduction test by Dr. Christine Vidouria. Dr. Vidouria reported Villarreal's numbness in his fingers was due to carpal tunnel syndrome, and Villarreal did not have any cervical or lumbar radiculopathy. Villarreal's medical records do not show any physician reviewed the results of the test with Villarreal. Villarreal initially testified he never discussed the results of the test with anyone, but later stated he had reviewed the results with a doctor.
On September 11, 2015, Villarreal had his last visit with Dr. Cerday at which Villarreal reported "his neck is significantly better, occasionally he has a sharp, burning pain on the left side of his neck that lasts for very short periods of time, but overall better." Villarreal denied "numbness or tingling in the upper extremities." Dr. Cerday's report concluded:
This gentleman I believe has responded reasonably well to the care and the injections. He still takes occasional ibuprofen
; however, he is quite concerned with his condition, especially in the future and wishes to follow back up from a surgical standpoint. I will accommodate him and make those referrals at this time, but overall I feel he has made significant progress.
No restrictions were placed on Villarreal's activities by Dr. Cerday. Villarreal testified Dr. Cerday told him if he did not feel better he would need surgery.
On December 10, 2015, Villarreal underwent surgery for a single level neck fusion performed by Dr. Adam Bruggeman. Dr. Bruggeman's report from Villarreal's six-week post-surgical follow-up stated:
[Villarreal] feels that his neck pain and popping has largely resolved. He does still have some radiating pain in the muscle of his trapezius on the left and right side, but mostly on the left side. He denies any new symptoms. He is anxious to get back to work. Again, he feels the pain is much better.
On March 16, 2016, Villarreal had a three-month follow-up with Dr. Bruggeman. Villarreal reported "his neck is doing fine but has been experiencing a lot [of] spasms ... which resolve with ibuprofen and baclofen." Baclofen is a muscle relaxant that was first prescribed for Villarreal's muscle spasms by Dr. Christine Contreras on February 9, 2016. Dr. Bruggeman noted Villarreal's cervical range of motion had considerably increased, and they discussed continuation of muscle relaxants and physical therapy as needed.
No additional medical records were introduced into evidence from the March 16, 2016 follow-up to the date trial commenced on April 2, 2018. Villarreal testified he continued to experience pain and took his muscle relaxer and five ibuprofen a day. Villarreal stated he hurts when he does strenuous work, and because he is not able to perform the heavier jobs as an appliance repairman, he is unable to work the same amount of overtime as before the accident. Two of Villarreal's co-workers also testified Villarreal was not able to perform the same amount of work since the accident. An exhibit Villarreal identified as listing the amounts he paid in medical bills was introduced into evidence. The total amount listed on the exhibit was $131,821.46.
Villarreal read portions of Dr. Patel's deposition at trial relating to his course of care. In the deposition, Dr. Patel testified when he examined Villarreal on July 14, 2015, Villarreal had good range of motion but pain with extension and rotation. Dr. Patel also testified Villarreal had numbness, tingling, and pain which is called radiculopathy. Dr. Patel stated the MRI showed arthritis at various levels of Villarreal's spine and an acute injury to one area of his neck which included disc herniation and a non-displaced compression fracture. Dr. Patel testified all of the medical treatment Villarreal received was necessary as a result of the accident. With regard to whether all of the medical charges were reasonable, Dr. Patel stated, "I'm not involved in the charges at all for that practice." Dr. Patel agreed he did not place any restrictions on Villarreal's activities when he examined him.
Timms called Dr. Joel Jenne, an orthopedic spine surgeon, to testify. Based on his review of Villarreal's medical records, Dr. Jenne testified he would not have recommended surgery for Villarreal; however, Dr. Jenne testified the medical records suggest Villarreal improved after surgery. With regard to the $131,821.46 in medical bills, Dr. Jenne testified the amounts were not reasonable and customary collected amounts for the treatment Villarreal received because they were too high. Dr. Jenne specifically testified: (1) the charges for the injections were $10,200 too high; (2) the charges for the MRIs were $3,250 too high; (3) the charge for the surgical hospital was $53,000 too high; and (4) the charge for the surgeon's fee was $20,000 too high.
During his testimony, Dr. Jenne referred to Dr. Patel as a hand surgeon.
ANALYSIS
"To recover for past medical expenses, a plaintiff must prove the actual amount of the expenses incurred and that those expenses were reasonable and necessary." Galvan v. Garcia , 502 S.W.3d 382, 386 (Tex. App.—San Antonio 2016, no pet.). As previously noted, three separate elements are required to be proven to support a recovery for past medical expenses: "(1) the amount of the charges for the medical expenses; (2) the reasonableness of the charges; and (3) the necessity of the charges." Singleton , 557 S.W.3d at 716.
As the majority notes, the amount of the charges was proven by Villarreal's medical bills which showed the amount charged was $131,821.46. The majority then focuses on the "reasonableness of the charges" and Dr. Jenne's criticisms of specific amounts charged for Villarreal's treatment. The jury, however, could read Dr. Jenne's testimony as a broader challenge to the total amount charged because Dr. Jenne generally testified that the total amount charged for Villarreal's treatment was in excess of the reasonable and customary collected amount for that treatment. The jury also had to weigh Dr. Patel's refusal to opine on the reasonableness of the charges, including the charges for his own services. Finally, the jury had to weigh the evidence relating to "the necessity of the charges," including the medical records and Dr. Cerday's report regarding Villarreal's condition following the injections.
We "may not set aside a finding of damages merely because the jury's reasoning in arriving at the amount is unclear." Pope , 2004 WL 1732325, at *2. Although the manner in which the jury weighed the evidence in reaching its award of $35,650 for past medical expenses is unclear, the evidence clearly shows the "necessity" of the medical services was disputed at trial, and the jury could have found Villarreal incurred any number of expenses that were not necessary. Therefore, the jury could have given no weight to charges the majority weighs in reaching its "basement" for the award.
The amount of damages the jury awards based on the evidence is uniquely within the jury's discretion, and the jury's award of $35,650.00 for past medical expenses is within the range of evidence. See id. at *2-4. Accordingly, I disagree that the jury's damage award for past medical expenses is against the great weight and preponderance of the evidence. Because the majority holds to the contrary, I respectfully dissent.