KASHA WARD N/K/A KASHA WARD HALVORSEN, Appellant v. LORETTA J. PEET, D.D.S., Appellee

AFFIRM; Opinion issued November 12, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-01029-CV
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KASHA WARD N/K/A KASHA WARD HALVORSEN, Appellant
V.
LORETTA J. PEET, D.D.S., Appellee
.............................................................
On Appeal from the 95th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 04-02992-D
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MEMORANDUM OPINION
Before Justices Morris, Francis, and Lang-Miers
Opinion By Justice Francis
        Kasha Ward Halvorsen appeals a take-nothing judgment against her on her dental malpractice claims against Loretta J. Peet, D.D.S. In three issues, Halvorsen challenges the legal and factual sufficiency of the jury's failure to find Dr. Peet negligent. Because the issues are well- settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.4. We affirm.
        Halvorsen sued Dr. Peet, alleging various acts of negligence in her dental care. She has limited her appeal to two acts - allegedly leaving a needle in her mouth and improperly placing a temporary tooth - and we will focus our review of the evidence accordingly. In February 2002, Halvorsen went to Dr. Peet complaining of pain in her mouth. It had been about eleven years since Halvorsen had been to a dentist, and severe decay and gum disease had set in. After an examination, Dr. Peet recommended that two teeth be pulled and root canals be done on three others. Halvorsen agreed, and Dr. Peet performed the work.
        In April, Halvorsen returned to Dr. Peet, this time complaining about pain in other parts of her mouth. An examination revealed that Halvorsen had several infections, and Dr. Peet recommended that ten teeth be extracted, and a root canal be performed on another. One of the extractions involved a front tooth, and Halvorsen was worried about having a gap in her smile. Dr. Peet told Halvorsen she could put in a temporary tooth, but that it needed to be replaced with something permanent in one to two weeks. Halvorsen was put on an antibiotic and returned three days later, on a Friday. Dr. Peet extracted the teeth, performed the root canal, and packed both sides of Halvorsen's mouth with gauze. She also placed a temporary crown where the front tooth was pulled.
        Halvorsen was heavily medicated during the procedures and still felt the effects of the drugs when she went home. She went to sleep on the couch and awakened at about 3 a.m. “very upset” because she thought she had to go to the dentist. Her husband explained that the dental work had already been done and told her to feel the gauze inside her mouth. Halvorsen said the gauze was soaked, so she pulled it out. After removing the gauze, Halvorsen felt something in her mouth and found a piece of plastic. When she pulled the plastic out, there was a needle attached. Halvorsen removed the needle, repacked her gums with gauze, and went to bed. A photograph of the needle was admitted into evidence at trial.
        Halvorsen said she called Dr. Peet's office three times over the weekend to report that she found a needle in her mouth, but Dr. Peet did not call her back. On Monday, she went back to Dr. Peet for a follow-up visit. Halvorsen said she told Dr. Peet about the needle, but Dr. Peet was “very nonchalant” and Halvorsen decided not to return to her. Fifteen days after the dental work was done, Halvorsen went to another dentist because her gum was black and in pain at the site of the temporary tooth. That dentist, Dr. Jonathan Priest, removed the temporary tooth and put in another, leaving a gap between the tooth and gum so the gum could heal.
        Dr. Peet testified she did not leave the needle in Halvorsen's mouth, but theorized that it “could have possibly been inside the gauze” that was placed in Halvorsen's mouth. Dr. Peet said the needle was an irrigation needle used to help clean out surfaces inside the tooth and was not used to inject medicine in the mouth. Dr. Peet specifically testified that she never stuck the needle in Halvorsen's gum or anywhere in her mouth. Dr. Peet said that Halvorsen did not mention the needle to her during the follow-up visit and said she heard, weeks later, “something about a needle wrapped in gauze” from her office manager when Halvorsen was called about an outstanding bill. When examining Halvorsen's mouth at the follow-up visit, Dr. Peet said she did not see any signs of any bleeding or “anything caused by the needle.”
         The case proceeded to a jury trial. After hearing the evidence, the jury made the following findings:
 
Did the negligence, if any, of those named below proximately cause the occurrence or injury in question?
 
 
 
Loretta J. Peet
 
        NO
 
 
 
 
Kasha Ward Halvorsen
 
YES
 
 
In accordance with the jury's verdict, the trial court rendered a take-nothing judgment. Halvorsen appealed.
        In three issues, Halvorsen challenges the legal and factual sufficiency of the jury's negative finding with respect to the negligence of Dr. Peet. She specifically complains about the finding as it relates to her allegations regarding the needle and temporary tooth.
        When a party with the burden of proof challenges the legal sufficiency of an adverse finding, she must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). In reviewing a matter of law challenge, we must first examine the record for evidence that supports the adverse finding. Id. We indulge every reasonable inference to support the jury's finding, crediting favorable evidence if a reasonable jury could and disregarding contrary evidence unless a reasonable jury could not. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). If there is no evidence to support the adverse finding, we examine the record to determine if the contrary proposition is established as a matter of law. Dow Chem., 46 S.W.3d at 241. We sustain the issue only if the contrary proposition is conclusively established. Id.
        When a party attacks the factual sufficiency of an adverse finding on an issue on which she has the burden of proof, she must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Id. We must consider and weigh all of the evidence, and we 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. Id. When reviewing the jury's failure to find, we must be mindful that the jury was not convinced of liability by a preponderance of the evidence, and we may not reverse simply because we conclude the evidence preponderates toward an affirmative answer. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988). The jury is the sole judge of witnesses' credibility and the weight to be given their testimony. City of Keller, 168 S.W.3d at 819.
        To establish a medical malpractice case, the plaintiff must prove: (1) a duty by the professional to act according to a standard, (2) a breach of the applicable standard of care, (3) an injury, and (4) damages proximately caused by the breach. Ocomen v. Rubio, 24 S.W.3d 461, 466 (Tex.App.-Houston [1st Dist.] 2000, no pet.).         We begin with the complaint involving the needle, and in particular, whether there was conclusive evidence that Halvorsen suffered an injury from the needle. At oral argument and in her brief, appellant argued Halvorsen had a puncture wound to her gum and relied on the following highlighted testimony:
 
[PLAINTIFF'S COUNSEL]: And what happened then?
 
 
 
[Halvorsen]: I got up and was very upset because I thought I had to go to the dentist. My husband was, like, no, you've already been. You're done. I was, like, I really don't want to go. He's [sic] said, you've already been. Put your hands in your mouth. You have gauze. You will be able to tell that you've had dental work.
 
 
 
I did, and the gauze was very soaked, so I pulled the gauze out. Then I felt that there was something else in my mouth. I looked in the mirror and there was part of a plastic piece in my mouth. I pulled it out and there was a needle attached to that. And I pulled it out of my gums, and I was shocked. I had never seen anything like that. I didn't know why on earth I would have something like that in my mouth. I did have bleeding. I put the gauze back on both sides of my mouth because I had removed the original gauze.
 
 
 
[PLAINTIFF'S COUNSEL]: May I approach, Your Honor?
 
 
 
        [TRIAL COURT]: You may.
 
 
 
[PLAINTIFF'S COUNSEL]: Can you identify what's in this plastic
 
                box?
 
        [Halvorsen]: That's the needle that was imbedded in my gums.
 
        We agree the evidence is undisputed that Halvorsen found a needle in her mouth. But, no where in this testimony does Halvorsen say the needle “punctured” her jaw or gum or that there was any puncture wound, and we have not found any such evidence in the record. While the jury could have inferred the needle punctured Halvorsen's gum or jaw, it did not nor was that the only inference the jury could have been drawn from the evidence. City of Keller, 168 S.W.3d at 821 (“Even if evidence is undisputed, it is the province of the jury to draw from it whatever inferences they wish, so long as more than one is possible and the jury must not simply guess.”).
        Dr. Peet testified that the type of needle found by Halvorsen was an irrigation needle used to clean the tooth. She specifically testified she did not stick Halvorsen's gums with it. While she did not know how the needle ended up in Halvorsen's mouth, she theorized that the needle somehow became detached from the syringe and her assistant picked it up with the gauze used to pack Halvorsen's mouth. Further, the evidence showed that Halvorsen was groggy and unaware the needle was in her mouth until she found it. Halvorsen testified she felt pain in her gum, but “[w]hether or not it was from the needle, I don't know.” She then acknowledged that her jaw was sore and gums irritated in general and that the only pain she felt was from the dental work. Finally, Halvorsen testified that while the gauze from both sides of her mouth was bloody, she did not know if her mouth was bleeding at the time. Given this evidence, we conclude a reasonable jury could have believed that the needle did not puncture Halvorsen's gum and did not cause her any pain. Consequently, Halvorsen has not shown that the evidence conclusively established an injury from the needle nor has she shown that the evidence is so contrary to the jury's finding as to be manifestly wrong.
        Next, Halvorsen complains that Dr. Peet improperly jammed a temporary tooth into an empty socket, causing her pain and her gums to turn black, and relies on the testimony of Dr. Priest and her expert, Dr. Richard Irwin. As before, Halvorsen must show that the evidence conclusively established each element of her complaint.
        Dr. Priest testified that Halvorsen came to see him on May 11, 2002, which was fifteen days after Dr. Peet placed the temporary tooth. Dr. Priest said the temporary tooth was put all the way into the socket but could not remember how it was held in Halvorsen's mouth. He was, however, “bothered” by the fact the tooth infringed on Halvorsen's tissue. When asked whether the temporary tooth was below the standard of care, Dr. Priest replied, “I mean, other than the infringement on the gum, I don't know if that's below the standard of care.” Dr. Irwin testified that he examined Halvorsen in 2004 as part of this lawsuit. Dr. Irwin testified that the blackening of Halvorsen's gum indicated that the false tooth “was pushed too far up into the extraction socket and was causing impringing and bruising of her blood supply.”
        Initially, we note that, as we read the record, Dr. Priest testified that he did not know if the tooth infringing on the gums was below the standard of care. But even if we assume there is evidence that placing a temporary tooth in an extraction socket is below the standard of care, there is no evidence, much less conclusive proof, that Dr. Peet pushed the temporary tooth up into the socket. Dr. Peet gave no such testimony, and Dr. Priest's testimony merely establishes that the tooth was pushed up into the socket fifteen days after the procedure.
        Moreover, evidence was conflicting as to the cause of Halvorsen's gums blackening. Dr. Irwin testified the tooth was pushed too far up in the extraction socket, causing the blackened gums. Dr. Peet, however, testified that Halvorsen failed to clean her gums as instructed. Dr. Peet testified that at the post-op visit, Halvorsen was “healing perfectly fine.” To keep the area “clean and healing properly,” Dr. Peet said she gave Halvorsen a syringe so that she could clean the area at home and told her to gently massage the area with a toothbrush. When asked why the area became “infected and black,” Dr. Peet said that she believed Halvorsen “had some bleeding, and she didn't properly clean the area like I showed her with the irrigation syringe.” Dr. Peet's testimony is some evidence as to the cause of the blackening of Halvorsen's gum and therefore some evidence to support the jury's failure to find Dr. Peet negligent. Moreover, having reviewed all of the evidence, it is not so contrary to the jury's failure to find as to be manifestly wrong.
        We conclude the evidence is legally and factually sufficient to support the jury's negative finding as to Dr. Peet. We therefore overrule Halvorsen's issues.
        We affirm trial court's judgment.
 
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
 
061029F.P05