Danette Byard and Craig Byard v. Dr. Fred Bressler, Individually and D/B/A Fred J. Bressler, M.D., P.A.

Affirmed and Memorandum Opinion filed December 9, 2004 Affirmed and Memorandum Opinion filed December 9, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-03-01207-CV ____________ DANETTE BYARD AND CRAIG BYARD, Appellants V. DR. FRED J. BRESSLER, INDIVIDUALLY AND D/B/A FRED J. BRESSLER, M.D., P.A., Appellee On Appeal from the 11th District Court Harris County, Texas Trial Court Cause No. 99-58496 M E M O R A N D U M   O P I N I O N In this case, we must determine whether to reverse and remand a jury trial because the evidence is legally and factually insufficient to support certain jury questions and because of a conflict in the jury’s answers. For the reasons stated below, we affirm. FACTUAL AND PROCEDURAL BACKGROUND Danette Byard thought her lips looked thin and decided to consult Dr. Fred Bressler, a board-certified facial plastic surgeon, about increasing the fullness of her lips. After consulting with him, she chose a surgical procedure known as a lip advancement. On January 27, 1998, Dr. Bressler performed the procedure at St. Luke’s Episcopal Hospital. Mrs. Byard became dissatisfied with her appearance, and several months after the procedure, Dr. Bressler performed a laser treatment to improve the appearance of scars from the incisions. Still dissatisfied, in November of 1999, Mrs. Byard and her husband Craig Byard sued Dr. Bressler. In their petition, the Byards alleged claims for negligence and gross negligence, lack of informed consent, fraud, and willful and intentional misrepresentation. In August of 2003, the case was tried before a jury. At the trial, the central issues were whether Dr. Bressler adequately informed Mrs. Byard of the risks and hazards of the lip advancement procedure, particularly whether it could result in scarring, and whether and to what extent she had visible scarring from the procedure. The issues were strongly contested and, as discussed in greater detail below, conflicting evidence was presented by the parties and their experts. At the conclusion of the trial, the jury found against Mrs. Byard on informed consent, negligence, gross negligence, fraudulent misrepresentation and negligent misrepresentation. The jury also awarded no damages for future mental anguish and permanent disfigurement as a result of the surgery, but awarded damages totaling $12,000.00 for past medical expenses and past physical pain and mental anguish. On September 8, 2003, the trial court entered a judgment that the Byards take nothing. This appeal followed. ANALYSIS OF ISSUES In nine issues, the Byards contend (1) the evidence is legally and factually insufficient to support the jury’s finding that Bressler did not fail to disclose to Mrs. Byard the risks and hazards inherent in the surgical procedure; (2) the evidence is legally and factually insufficient to support the jury’s finding that Mrs. Byard did not suffer any injury or damages as a proximate cause of Bressler’s failure to obtain her informed consent; (3) the evidence is legally and factually insufficient to support the jury’s finding that Dr. Bressler’s negligence, if any, did not proximately cause Mrs. Byard’s alleged injuries; (4) the evidence is legally and factually insufficient to support the jury’s finding that Mrs. Byard suffered no disfigurement or other damages as a proximate cause of Dr. Bressler’s negligent misrepresentation as to the risks or hazards of the lip enhancement surgery; and (5) the jury’s finding of damages for physical pain and mental anguish in the past and medical expenses in the past conflicts with the jury’s other findings. We first address the informed consent questions, followed by the negligence questions and, lastly, the Byards’ contention that the jury gave conflicting answers. I. The Informed Consent Questions In issues one through four, the Byards contend the evidence is legally and factually insufficient to support the jury’s answers to Questions 1 and 3. We review the Byards’ legal and factual sufficiency of the evidence issues by well-established standards. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241–42 (Tex. 2001). The jury answered “No” to Questions 1 and 3, which asked the following: · Did Dr. Bressler fail to disclose to Mrs. Danette Byard such risks and hazards inherent in the surgical procedure that could have influenced a reasonable person in making a decision to give or withhold consent to such treatment? · Did Mrs. Danette Byard suffer any injury or damages as a proximate cause of Dr. Fred Bressler’s failure to obtain Mrs. Danette Byard’s informed consent?[1] The parties agree that Dr. Bressler’s duty to Mrs. Byard was the duty “to disclose all risks or hazards which could influence a reasonable person in making a decision to consent to the procedure.” See Peterson v. Shields, 652 S.W.2d 929, 931 (Tex. 1983); Knoll v. Neblett, 966 S.W.2d 622, 628 (Tex. App.—Houston [14th Dist.] 1998, pet. denied). A. The Legal Sufficiency Challenge to the Jury’s Findings on Informed Consent The Byards’ legal sufficiency challenges fail because some evidence supports the jury’s findings in Questions 1 and 3. See Francis, 46 S.W.3d at 241. The expert testimony established that scarring was an inherent risk in the lip advancement procedure. Dr. Bressler testified that he informed Mrs. Byard of the risks and complications of the procedure, including scarring. Dr. Bressler also testified that he drew on paper and on Mrs. Byard where the incisions would be located. His office notes reflected that he “answered” all of Mrs. Byard’s “questions and concerns.” Dr. Bressler’s nurse, Becky Soria, also testified that she discussed the procedure and the risk of scarring with Mrs. Byard. Dr. Bressler testified that he obtained Mrs. Byard’s informed consent verbally in the office and again at the hospital on the day of the surgery. Dr. Bressler’s surgical notes document that he obtained Mrs. Byard’s “full informed consent.” Expert testimony was also presented that Mrs. Byard’s lip advancement procedure was successful and enhanced her appearance. Because we find some evidence supports the jury’s findings, we need not examine the entire record to determine if the contrary propositions are established as a matter of law. Id. at 241–42. B. The Factual Sufficiency Challenge to the Jury’s Findings on Informed Consent We next consider the Byards’ factual sufficiency challenges to Questions 1 and 3. Mrs. Byard testified that she went to Dr. Bressler because of his advertisements in magazines,[2] including one referencing “Amazing changes. Lips enhanced by undetectable lip advancement.” The meaning of the term “undetectable” was disputed at trial. Mrs. Byard testified that she understood “undetectable” to mean that it could not be seen and nobody would know. Mrs. Byard’s expert, Dr. Swartz, thought the ad was “unsupportable” because “anytime we put a knife on someone’s skin, it’s going to leave a scar and that’s going to be a detectable situation, even in the best of circumstances.” In contrast, Dr. Bressler defined “undetectable” to mean undetectable to the casual observer. He also denied that he told Mrs. Byard she would have “invisible scars.”[3] Dr. Bressler’s expert, Dr. Biggs, similarly testified that “undetectable” means that in a social circumstance, it is not seen or noticed, and does not mean “invisible.” In addition to relying on Dr. Bressler’s advertisements, Mrs. Byard testified that Dr. Bressler assured her scarring would not occur, and he guaranteed she would have no scars. Mrs. Byard also testified that she was told the incisions would be made inside the mouth, and denied that Dr. Bressler marked on her where he would make the incisions. She testified that she would not have had the surgery if Dr. Bressler had warned her of the risk of permanent disfigurement or the necessity for future surgery. However, the jury could have relied on evidence it decided conflicted with this testimony. Mrs. Byard testified that she had other cosmetic and surgical procedures before the lip advancement—a breast augmentation surgery, rhinoplasty, and collagen injections to her lips—and admitted that a doctor cannot guarantee results. She also chose the lip advancement procedure after rejecting the other options of more collagen injections or lip implants. The jury could have determined that she was knowledgeable about cosmetic procedures and understood the risk of scarring from a surgical procedure. She was awake for the lip advancement surgery and after it was over she never mentioned that she thought the incisions would be made inside the mouth. In addition, when she testified at trial that Dr. Bressler did not draw the location of the incisions on her lips and on paper, she contradicted her earlier deposition testimony. The Byards’ expert, Dr. Swartz, testified that Dr. Bressler failed to follow the standard of care expected of a reasonable and prudent plastic surgeon, and that Mrs. Byard suffered some permanent injury. He also testified that he could see her scars from a couple of feet away, and he thinks all scars are disfiguring. However, he also testified that if a doctor explains the risks and complications of the surgery and discloses that scarring is a possibility, then he is not below the standard of care. He went on to state that, if the jury believed that Dr. Bressler told Mrs. Byard that scarring was a potential risk, then they should believe he was not negligent. Dr. Bressler’s expert, Dr. Biggs, testified that Dr. Bressler’s conduct did not fall below the standard of care and that, based on his review of the documents and his interviews with Dr. Bressler, Becky Soria, and Mrs. Byard, Dr. Bressler obtained a full and informed consent from Mrs. Byard. Mrs. Byard testified that the disfigurement from her lips was “completely humiliating” and she felt that people talked about her behind her back. But again, the record contained conflicting evidence. Psychiatric records in evidence reflected that she had suffered from depression for years and that some of the feelings she described predated the lip advancement procedure. These records contain no complaints about Dr. Bressler, the lip advancement procedure, or her feelings about them. Mrs. Byard also testified that she was self-conscious and could not go out in public. Yet, she appeared on a news broadcast after the procedure. She also consulted Dr. Bressler about additional cosmetic surgery on her nose and, at some point after the procedure, wrote Dr. Bressler a note in which she stated that she was “loving [her] new and improved lush lips.”[4] She also admitted that she was happy with her appearance, but maintained that she is “disfigured”—although not grossly so. Other testimony on the visibility of Mrs. Byard’s scars was conflicting. Her expert, Dr. Swartz, testified that the scars were visible to a casual observer and in a social setting. Conversely, Dr. Bressler’s expert, Dr. Biggs, testified he needed a magnifying glass to see the scars. He also testified that she was not disfigured. Dr. Biggs, Dr. Bressler, and Nurse Soria all testified they thought Mrs. Byard’s lip advancement procedure was successful. Of course, the jury was also able to evaluate Mrs. Byard’s claims and the witnesses’ testimony. In connection with both their informed consent and misrepresentation claims, the Byards rely heavily on the St. Luke’s Episcopal Hospital consent form Mrs. Byard signed on the day of the surgery. The hospital’s form included a broad and general list of risks, and a section in which space was provided to list the risks and hazards of the particular procedure. No risks were listed in the spaces provided when Mrs. Byard signed the form. The Byards contend that the failure to list the risks of the lip advancement procedure demonstrates that Mrs. Byard was not informed of the procedure’s risks. Additionally, in connection with their misrepresentation claim, Mrs. Byard contends she relied on the blank form as a representation that the procedure had no risks. At trial, Dr. Swartz testified that the hospital consent form was inadequate to advise Mrs. Byard of the risks of the surgery. He also testified that it should have included potential asymmetry, bleeding, infection, widened scars, recurrence of the deformity, need for future surgery, numbness, and paralysis. The Byards contend this testimony is undisputed and Dr. Bressler did not testify that he warned of any of those risks other than scarring. However, Dr. Bressler did respond. He testified that he fully informed Mrs. Byard of the risks and obtained her consent verbally.[5] See Knoll, 966 S.W.2d at 628–29 (holding that written consent form was not required when statute did not specify disclosures for a particular procedure). Regarding the warning Dr. Bressler should have given, Dr. Swartz testified that if the jury believed Dr. Bressler and his nurse told Mrs. Byard that scarring was a potential risk, then they should find that Dr. Bressler was not negligent. Additionally, the consent form Mrs. Byard signed recited the following: “I (We) have been given an opportunity to ask questions about my condition, . . . the procedures to be used, and the risks and hazards involved, and I (we) believe that I (we) have sufficient information to give this informed consent.” Mrs. Byard admitted this was a true statement on the day she had her surgery. The jury was able to look at all of the testimony and draw its own conclusions. The jury is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 796 (1951). As the fact finder, the jury may resolve conflicts or inconsistencies in any witness’s testimony, believe or disbelieve a witness, or accept lay over expert testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). Here, the jury was entitled to resolve conflicts in the testimony and could have reasonably reached the adverse findings in Questions 1 and 3. The Byards have not shown, and the record does not support, that these adverse findings are so against the great weight and preponderance of the evidence that they are clearly wrong and unjust. See Francis, 46 S.W.3d at 242.[6] We overrule issues one through four. II. The Negligence and Negligent Misrepresentation Questions In issues five through eight, the Byards contend the evidence is legally and factually insufficient to support the jury’s negative answers to Questions 4 and 7.[7] Questions 4 and 7 asked the following: · Did the negligence, if any, of Dr. Fred Bressler proximately cause Danette Byard’s alleged injuries? · Do you find that Danette Byard suffered disfigurement or other damages as a proximate cause of Dr. Bressler’s ‘negligent misrepresentation[’] as to the risks or hazards of the lip enhancement surgery? We address each in turn. A. The Jury’s Negative Finding on Negligence We first consider the legal and factual sufficiency of the evidence supporting the jury’s answer to Question 4. Dr. Biggs testified that the lip advancement procedure, while not one he has performed in the “exact same way” as Dr. Bressler, was a recognized procedure, and that Dr. Bressler correctly performed it. He also testified, as did Dr. Bressler, that the surgery could not be done inside the mouth. Additionally, he opined that Dr. Bressler caused Mrs. Byard no damages or disfigurement, and that the surgery had an “excellent result” that enhanced Mrs. Byard’s appearance. Other evidence consistent with these opinions was also presented, some of which we have already outlined above. The Byards contend, however, that Dr. Biggs and Dr. Bressler were impeached by “critical testimony as to the issue of negligence.” They argue that Dr. Swartz’s testimony was credible that the surgery Dr. Bressler performed has been “condemned” by plastic surgeons as causing extensive scarring, and was supported by medical authority. The Byards contend that Dr. Biggs “admitted” that an article Dr. Swartz relied on was “authoritative in the position that the surgery should not be performed on the outside of the lips.” The Byards also emphasize the Dr. Biggs has not performed the lip advancement procedure as Dr. Bressler has done. In addition, they point to Dr. Swartz’s testimony that Bressler did not correctly perform the surgery, and that anyone performing this surgery would fall below the standard of care because it should not be performed. However, the jury was in the best position to compare the credentials of the doctors and determine whether Dr. Swartz was more or less credible than Dr. Biggs and Dr. Bressler. Moreover, we disagree with the Byards’ characterization of Dr. Biggs’s testimony regarding the article by Dr. Wilkinson. Far from admitting it was authoritative, Dr. Biggs testified that the article (which was not put in evidence) was not a peer-reviewed article, but merely reflected the author’s opinion of the surgery.[8] Further, although Dr. Swartz characterized lip advancement as a “silly operation,” he admitted that other licensed doctors perform the surgery and disagree with his opinion of it. Dr. Swartz also described Dr. Biggs’s reputation and qualifications as “excellent.” We have carefully reviewed all of the evidence presented, and we hold that it does not demonstrate that Dr. Bressler was negligent as a matter of law. Moreover, the evidence is not so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. We overrule issues five and six. B. Negligent Misrepresentation In their seventh and eighth issues, the Byards contend the evidence is legally and factually insufficient to support the jury’s answer to Question 7, the negligent misrepresentation question. They argue that the evidence “clearly showed” that Dr. Bressler negligently misrepresented that the surgery would not cause any scarring, and he admitted he did not tell Mrs. Byard that the scars may require other surgery. They also note that Dr. Bressler testified that, while he shows patients pictures of other patients who have had good results, he does not show them the pictures of patients who have had bad results. The Byards also rely on the advertisement of “undetectable” lip advancement discussed above. In response, Dr. Bressler argues that Question 7 merely attempts to recast the Byards’ negligence claim, because at its core it is a claims that Dr. Bressler deviated from a standard of care in performing the lip advancement. Therefore, he urges that the Byards should not be allowed to recover on this basis. Dr. Bressler objected to the submission of this question at trial and the trial court overruled the objection. We do not need to address that issue because, even if we assume that the question was properly submitted, we hold that the evidence was legally and factually sufficient to support the jury’s answer. Question 7 asked whether Mrs. Byard suffered disfigurement or other damages as a proximate cause of Dr. Bressler’s negligent misrepresentation “as to the risks or hazards of the lip enhancement surgery.” The question included an instruction that “negligent misrepresentation” occurs when (1) a physician makes a representation to a patient in the course of the physician’s business, or in [a] transaction in which the physician has a pecuniary interest, (2) the physician supplied false information for the guidance of a patient, (3) the physician did not exercise reasonable care or competence in obtaining or communicating the information, and (4) the patient suffered damages by justifiably relying upon the misrepresentation. The Byards rely upon much of the same evidence and argument as they presented in support of their issues on the informed consent questions. As discussed above, the Byards contend that Mrs. Byard relied on Dr. Bressler’s advertisements of “undetectable” lip advancement, his guarantee that she would not have scarring, and the hospital consent form that listed no specific risks of the procedure. We have previously outlined much of the evidence presented in discussing the jury’s answers to Questions 1 and 3. The meaning of “undetectable” was a contested issue, and the Byards’ own counsel pointed out at trial that the dictionary does not define “undetectable.” The jury heard evidence from the parties and their experts and was free to determine the word’s meaning in the context of the evidence presented. The jury could also have determined that Mrs. Byard did not rely on the advertisements, but chose Dr. Bressler from the “Yellow Pages” as his records showed. The jury was also able to consider the witnesses’ credibility concerning what Dr. Bressler did or did not tell Mrs. Byard about the surgery, and determined that he did not fail to disclose the inherent risks or hazards of the surgery. The jury also could have determined that Mrs. Byard gave informed consent verbally, and could have discounted the hospital consent form. Regarding Dr. Bressler’s practice of showing photographs of good results and not bad results, the Byards do not explain how this constitutes a negligent misrepresentation. Dr. Bressler explained that he shows his patients photographs of typical results, and he does not show pictures of bad results because such results are not typical and therefore are not representative of his work. Moreover, Mrs. Byard denied seeing any photographs of other patients; therefore, she could not have been misled by photographs of only good results. We find, based on our review of the evidence, that legally and factually sufficient evidence supports the jury’s answer to Question 7. We overrule issues seven and eight. III. The Damages Question In their ninth issue, the Byards contend the jury’s damages findings in Question 8 conflict with the jury’s negative liability findings in Questions 1 through 7. In Question 8, the jury found that Mrs. Byard suffered damages of $6,000.00 for physical pain and mental anguish in the past and $6,000.00 for medical expenses in the past as a result of the lip enhancement surgery. The Byards contend this conflict is irreconcilable and therefore the judgment should be reversed and the case remanded for a new trial. In reviewing the jury findings for conflict, the threshold question is whether the findings address the same material fact. See Bender v. S. Pac. Transp. Co., 600 S.W.2d 257, 260 (Tex. 1980). This court may not strike down allegedly conflicting jury answers if any reasonable basis exists upon which they can be reconciled. Id. We must reconcile apparent conflicts in the jury's findings if reasonably possible in light of the pleadings and evidence, the manner of submission, and the other findings considered as a whole. Id. To require reversal, a conflict between jury answers “must be such that one answer would establish a cause of action or defense, while the other would destroy it.” Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985, 991 (1949); Brown v. Armstrong, 713 S.W.2d 725, 728–29 (Tex. App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.). The test is whether taking the finding alone in the one instance, a judgment should be entered in favor of the plaintiff; and taking it alone in the other, judgment should be entered in favor of the defendant. Little Rock Furniture, 222 S.W.2d at 991. To apply this test, we consider each of the answers claimed to be in conflict, and, if one of the answers would require a judgment in favor of the plaintiff and the other would require a judgment in favor of the defendant, then the answers are fatally inconsistent. Id. The party seeking to set aside the verdict on the ground of conflict must be able to point out that one of the conflicting answers of the jury necessarily requires the entry of a judgment different from that which the court has entered. Id. Here, the Byards cannot argue that the jury’s findings show that Mrs. Byard was injured by any wrongdoing by Dr. Bressler or that one answer establishes a cause of action or defense while another would destroy it. The amounts simply reflect that the jury assigned dollar amounts to the expenses Mrs. Byard incurred and her pain and suffering as a result of the surgery. Therefore, the Byards cannot demonstrate a fatal conflict requiring us to set aside the judgment. Additionally, the jury’s answers on liability, which we have held are supported by legally and factually sufficient evidence, render immaterial the jury’s answers to the damages question. See, e.g., Brown, 713 S.W.2d at 729; Yarbrough v. Helmerich and Payne, Inc., 616 S.W.2d 444, 445 (Tex. App.—Houston [14th Dist.] 1981, no writ). Therefore, no conflict exists between Question 8 and Questions 1 through 7. See Brown, 713 S.W.2d at 729. We overrule the Byards’ ninth issue. CONCLUSION We hold that the evidence is legally and factually sufficient to support the jury’s answers to the questions on informed consent, negligence, and negligent misrepresentation. We also hold that, because the jury found Dr. Bressler was not liable, the jury’s answers to the damages question was immaterial. The trial court’s judgment is affirmed. /s/ Wanda McKee Fowler Justice Judgment rendered and Memorandum Opinion filed December 9, 2004. Panel consists of Chief Justice Hedges and Justices Fowler and Seymore. [1] Question 2 was conditioned on a “Yes” answer to Question 1, and asked “Would a reasonable person have refused such a surgical procedure if those risks and hazards had been disclosed?” Question 2 is not a subject of this appeal. [2] Dr. Bressler’s records indicate Mrs. Byard’s referral source was the “Yellow Pages.” [3] The Byards repeatedly rely on testimony from the original volume of the reporter’s record, entitled “Statement of Facts,” which reflects that Dr. Bressler said “I told the patient and showed her the instrument in a safe manner that it would be in an undetectable fashion—invisible scars.” However, the Statement of Facts was later corrected, and the corrected version reflects that Dr. Bressler testified as follows: “I told the patient that we could do the surgery in a safe manner, that it would be in an undetectable fashion, not invisible scars.” [4] Mrs. Byard’s explanation of the note was that she wrote it within the first week after the surgery, even though her lips were still swollen and sutured, because she “anticipated those results were guaranteed.” [5] Dr. Bressler testified that when he does a procedure in the office he has the patient sign a consent form that he uses. Consequently, when he later treated Mrs. Byard in his office with a laser to reduce the appearance of the scars, he obtained a written consent from her. He also testified he did not look at the hospital’s consent form, because by that time the consent had already been handled in the office. [6] The Byards also contend that the jury’s negative finding in answer to Question 1 conflicts with its answer to Question 3 because Question 3 presumes that Dr. Bressler failed to obtain Mrs. Byard’s informed consent. However, we do not interpret Question 3 as the Byards do. The jury found in Question 1 that Dr. Bressler did not fail to disclose to Mrs. Byard the inherent risks or hazards of the procedure. Consistent with this finding, the jury found in Question 3 that no damages could have resulted from any failure on Dr. Bressler’s part to obtain Mrs. Byard’s informed consent. Therefore, we find that the jury’s answers to Questions 1 and 3 do not conflict. [7] The Byards do not challenge the jury’s findings in Questions 5 and 6. Question 5 asked, “Do you find that Danette Byard suffered permanent disfigurement and other damages as a proximate cause of the gross negligence of Dr. Fred Bressler, if any, in performing the lip enhancement surgery in question?” Question 6 asked, “Do you find that Dr. Fred Bressler fraudulently represented the nature of the lip enhancement surgery and the risks of permanent disfigurement and other risks associated with the surgery?” [8] The Byards also misrepresent a portion of Dr. Biggs’s testimony, presenting it to appear as though Dr. Biggs is agreeing with and explaining a portion of Dr. Wilkinson’s article. However, the transcript reveals that a portion of the Byards’ cross-examination of Dr. Biggs was omitted. Read in context, the testimony shows that Dr. Biggs was actually just reading from Dr. Wilkinson’s article as the Byards’ counsel had instructed. During this cross-examination, Dr. Biggs also attempted to explain to counsel that the operation Dr. Wilkinson was describing was a different procedure than the one Dr. Bressler did.