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MEMORANDUM OPINION

No.
04-05-00768-CV

Nancy ORTEGON,

Appellant/Cross-Appellee

v.

Enrique
BENAVIDES, Jr., M.D,

Cross-Appellant

&

Enrique
BENAVIDES, Jr., M.D.; Mercy Health Systems of Texas,

Laredo Medical
Center, as Successor in Interest of Mercy Health Center, and

Mercy Hospital
of Laredo d/b/a Mercy Health Center,

Appellees

From the 111th
Judicial District Court, Webb County, Texas

Trial Court No.
2003-CVQ-001399-D2

Honorable Raul
Vasquez, Judge Presiding

Opinion by:     Rebecca Simmons,
Justice

Sitting:
Catherine Stone, Justice

Karen Angelini, Justice

Rebecca Simmons, Justice

Delivered
and Filed:  March 5, 2008

AFFIRMED

This
medical malpractice case stems from an operation wherein Appellee Dr.
Enrique Benavides, Jr. (“Benavides”) performed a vaginal hysterectomy and
anterior repair on Appellant Nancy Ortegon (“Ortegon”).  The
procedure was performed at Mercy Health Systems of Texas (“Mercy
Hospital”).  During the operation, numerous complications developed
and Benavides ultimately had to re-open the sutures to retrieve a surgical
sponge.

The
trial court granted a directed verdict in favor of Benavides and Mercy
Hospital with regard to all claims other than the res ispa loquitor claims
of negligence against Benavides relative to the sponge retrieval.  On
the sole issue of negligence, the jury found in favor of Benavides.
Ortegon raises several issues on appeal:  the trial court erred in
granting the directed verdict; defense counsel’s comments were incurable
error; and the trial court erred in failing to grant a new trial.
Additionally, Ortegon’s Motion to Late Designate Points or Issues to Be
Presented on Appeal was carried with the appeal.  We deny Ortegon’s
motion to late designate and affirm the judgment of the trial court.

Factual
Background

Benavides
operated on Ortegon on March 5, 2002, performing a vaginal hysterectomy
and anterior repair.  During the surgery, Ortegon suffered excessive
blood loss and Benavides elected not to complete a posterior repair.
After discovering that a surgical sponge was left inside, Benavides
re-opened Ortegon’s incision to retrieve the sponge.  According to
Benavides, it was standard procedure, taking only a matter of minutes, and
the same incision was opened and resealed.

After
surgery, Ortegon was very weak, her kidneys, lungs and heart began to
fail, and she showed signs of shock and anemia, ultimately requiring
resuscitation.  As a result of the continued life-threatening
complications, tests were performed indicating a perforation or
obstruction of the bowel.  Benavides consulted with several
specialists, including Dr. Robert Maddox (“Maddox”).  On March 22nd,
Benavides and Maddox performed a “small bowel resection, involving two
inches of bowel on either side of the perforation.”

The jury trial commenced on August 8, 2005.  After Ortegon rested,
the trial court granted defendants’ joint motion for directed verdict on
all of the claims except Ortegon’s negligence claims against Benavides
based on res ipsa loquitor and the damages flowing therefrom.  On
August 17, 2005, the jury returned a verdict in favor of Benavides on the
sole remaining issue.

Motion to Late
Designate

In order to determine the correct presumption to apply when considering
the partial record before us, we address Ortegon’s Motion to Late
Designate Points or Issues to Be Presented on Appeal, filed on May 10,
2007.   A brief chronology of events is in order.  On
January 24, 2006, Ortegon requested a partial reporter’s record consisting
of testimony from Plaintiff’s expert Dr. Gerald Bullock, Defendant Dr.
Benavides, Dr. Robert Maddox, and Nurse Aldape.  Ortegon, however,
failed to include the required statement of points or issues to be
presented on appeal pursuant to Texas Rule of Appellate Procedure
34.6(c)(1).  Due to inordinate delay by the court reporter, the
partial record was not filed until September 29, 2006.  Ortegon filed
her brief raising seven issues on appeal on January 3, 2007.
Benavides filed his responsive brief on April 4, 2007.

In
response, Benavides discussed the partial record and lack of a statement
of issues which therefore precluded the application of a complete record
presumption pursuant to Texas Rule of Appellate Procedure
34.6(c)(4).  Benavides argued the applicable presumption is that the
omitted portions of the record support the judgment of the trial
court.  The appeal was “at issue” and ready for submission on April
9, 2007.  As a result of Benavides’s arguments, Ortegon filed
Appellant’s First Motion for Extension of Time to File Reply Brief, and
Motion to Late Designate Points or Issues to be Presented on Appeal on May
10, 2007.  Accompanying this motion was an explanation to the court
that Ortegon had contacted the court reporter requesting prompt
preparation and transmittal of additional portions of the reporter’s
record not previously submitted.

This
court subsequently requested a response from Benavides addressing any
prejudice arising from Ortegon’s delay in filing the Rule 34.6(c)
statement.  On May 17, 2007, Benavides filed his response claiming no
prejudice with regard to the medical malpractice claims, but asserting
prejudice with regard to the remaining appellate issues.  By order of
this court, dated May 25, 2007, Ortegon’s motion was carried with the
appeal.  On May 30, 2007, eight days after Ortegon filed her
reply brief, and one day after Benavides filed his surreply, the
court reporter filed a supplemental reporter’s record that included
Ortegon’s testimony.

An appellant must make a written request that the official reporter
prepare the reporter’s record, designating the exhibits and portions of
the proceedings to be included in the record. Tex. R. App. P. 34.6(b)(1).
A copy of this request must be filed with the trial court clerk.
Tex. R. App. P.
34.6(b)(2).  A partial reporter’s record is available in order to
minimize the expense and delay associated with the appellate
process.  Tex. R. App.
P. 34.6(c)(1); see Christiansen v. Prezelski, 782
S.W.2d 842, 843 (Tex. 1990) (per curiam).  An appellant who requests
a partial record must also include a statement of appellate issues to be
presented and will be limited on appeal to those points or issues.
See Tex. R. App.
P. 34.6(c)(1).  Rule 34.6(c)(4) affirmatively states that the
partial record is presumed to be complete.  Tex. R. App. P. 34.6(c)(4).
Yet, when an appellant entirely fails to present the statement of points
or issues, then the presumption that the record is complete for appellate
purposes does not apply, and the appellate court applies the presumption
that the material missing from the reporter’s record is relevant and
supports the trial court’s judgment.  Richards v. Schion, 969
S.W.2d 131, 133 (Tex. App.―Houston [1st Dist.] 1998, no pet.) (“When an
appellant appeals with a partial reporter’s record but does not provide
the list of points as required by Rule 34.6(c)(1), it creates the
presumption that the omitted portions support the trial court's
findings.”)

Recently, in W & F Transp., Inc. v. Wilhelm, 208 S.W.3d 32, 38
(Tex. App.─Houston [14th Dist.] 2006, no pet.), the court explained that
the purpose of Rule 34.6(c) is to protect an appellee from having to
defend an appeal from a partial record devoid of a part that may support
its defense.  The statement of issues mandated by Rule 34.6(c)
provides the appellee with notice of the issues being appealed in a timely
manner so as to allow the appellee to designate additional portions of the
record it may deem necessary for its case.  Tex. R. App. P. 34.6(c).
“Compliance with the rule . . . affords the opposing party an opportunity
to designate additional material to be included in the statement of facts
which it deems relevant to the issues on appeal, as defined by appellant.”
Superior Packing, Inc. v. Worldwide Leasing & Fin., Inc.,
880 S.W.2d 67, 70 (Tex. App.─Houston [14th Dist.] 1994, writ
denied).  “Absent such a specific statement [of points or issues],
the Appellee is left to guess which additional portions of the evidence
should be included in the statement of facts.”  Gardner v. Baker
& Botts, L.L.P., 6 S.W.3d 295, 296-98 (Tex. App.─Houston [1st
Dist.] 1999, pet. denied).

Ortegon admittedly did not file a timely statement of appellate
issues; however, that alone does not resolve this point.  We must
determine whether any prejudice resulted from a late filed
statement.  The supreme court rejected a “strict compliance”
approach with regard to Rule 34.6 and instead determined the proper
question, in considering a late statement of the issues, was whether the
appellee had been prejudiced.  Bennett v. Cochran, 96 S.W.3d
227, 229 (Tex. 2002) (per curiam).  While acknowledging the
importance of Rule 34.6’s statement of issues, the court affirmed its
prior commitment that the rules of appellate procedure be applied to
address a party’s meritorious claim.  Id.  In doing so,
the court approved a statement of issues that had been filed two months
late, holding:

Here, the
objective behind Rule 34.6(c)(1) was fully served. [Appellee] does not
allege that he was deprived of an opportunity to designate additional
portions of the reporter’s record, nor does he assert that [appellant’s]
delay otherwise prejudiced the preparation or presentation of his case.
Under these circumstances, we hold that Rule 34.6 does not preclude
appellate review of [appellant’s] legal and factual sufficiency
issues.

Id. at 230. Thus, a
late-filed statement of points or issues is sufficient to maintain the
presumption that the record is complete unless the appellee shows the late
filing of the statement would prejudice him.  Id. at 229-30.

In the present case, Benavides concedes that with regard to Ortegon’s
medical negligence issues, the only evidence necessary for the
determination of the issues is expert testimony.  Because Ortegon
initially requested the testimony of the medical experts – Bullock,
Benavides and Maddox – Benavides concedes that the original appellate
record, as requested by Ortegon, is adequate.  With regard to the
fraud and failure to disclose allegations, Benavides asserts these
allegations require the testimony of Ortegon regarding what she was told
by Benavides and the staff of Mercy Hospital.  The supplemental
reporter’s record containing Ortegon’s testimony was not filed until
months after briefing was completed and the case was at issue and ready
for submission.  Benavides asserts allowing the late designation of
these issues will irreparably harm and prejudice him because he was unable
to fully and properly respond to such issues in his briefing as he was
without the benefit of Ortegon’s testimony.  We agree.

This case is easily distinguishable from Bennett because Ortegon’s
late request to designate issues on appeal was made several months after
briefing was completed by all three parties.  In Bennett, the
appellee had more than two months after he received notice of the
appellant’s statement of issues to supplement the record and file his
brief.  Id. at 229.  Here, Ortegon’s request to file a
statement of issues was made after briefing was complete and the case was
at issue.  Thus, Benavides’s appellate posture would be impaired by
such a late filing.

To
allow such a late filing of the statement of points or issues on appeal
would go against the spirit of the rules of appellate procedure.  In
this case, Ortegon elected to proceed on a partial record.  Benavides
responded and addressed the merits of the same urging this court to apply
the appropriate presumption.  Importantly, the supplemental record
containing Ortegon’s testimony was filed over a month after Benavides’s
brief was submitted.  Our rules of appellate procedure are not
designed to allow an appellant to brief an issue, wait for the appellee to
point out the problems with their briefing and then, after the case is at
issue, allow the appellant to bring forward additional issues on appeal
and a supplemental record.  Accordingly, Ortegon’s motion for late
designation is denied.

Directed
Verdict

Ortegon complains the trial court erred in granting a directed verdict on
both her negligence and non-negligence claims.

A.
Standard of Review

In
reviewing the granting of a directed verdict, we follow the standard of
review for assessing the legal sufficiency of the evidence.
See City of Keller v. Wilson, 168 S.W.3d 802,
823 (Tex. 2005) (stating that the test for legal sufficiency should be the
same for summary judgments, directed verdicts, judgments notwithstanding
the verdict, and appellate no-evidence review).  A directed verdict
for a defendant is appropriate when the plaintiff does not present
evidence raising a fact issue essential to the plaintiff’s right of
recovery or when a plaintiff admits or the evidence conclusively
establishes a defense to the plaintiff’s cause of action.
Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29
S.W.3d 74, 77 (Tex. 2000).  The trial court should consider all the
evidence in the light most favorable to the party against whom the verdict
was instructed, crediting favorable evidence if reasonable jurors could
and disregarding contrary evidence unless reasonable jurors could
not.  City of Keller, 168 S.W.3d at 827.  In doing so,
the trial court should direct a verdict when reasonable minds can draw
only one conclusion from the evidence.  Vance v. My Apt. Steak
House, Inc., 677 S.W.2d 480, 483 (Tex. 1984).

Ortegon
contends the trial court erred in granting a directed verdict on her
negligence claims because she presented sufficient evidence that
Benavides’s conduct was negligent.[1]
To reverse the trial court’s grant of the directed verdict, Ortegon must
establish that she presented some evidence on each and every element of
her negligence claims.

B.
Medical Malpractice

Ortegon
contends the trial court erred in granting a directed verdict on her
negligence claims because she presented sufficient evidence that
Benavides’s conduct was negligent and that his negligence caused her
injuries.  Specifically, Ortegon alleges that she presented expert
witness testimony sufficient to establish: (1) the applicable standard of
care; (2) that Benavides breached that standard; and (3) that the breach
caused her injuries.

In a medical negligence case, the plaintiff must prove, by competent
expert testimony, that the defendant’s breach of duty proximately caused
the plaintiff’s injuries.  Duff v. Yelin, 751 S.W.2d 175, 176
(Tex. 1988); Hart v. Van Zandt, 399 S.W.2d 791, 792 (Tex.
1966).  On the causation element, the plaintiff is required to show
evidence of a reasonable medical probability that the injury was
proximately caused by the breach of the defendant.  Park
Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995);
Duff, 751 S.W.2d at 176.  Through expert testimony, the
plaintiff must prove:

(1) A duty by the physician
to act according to a certain standard of care;

(2) A breach of that
standard of care;

(3) An injury; and

(4) A causal connection
between the breach of care and the injury.

Morrell v. Finke,
184 S.W.3d 257, 271 (Tex. App.─Fort Worth 2005, pet. denied).

The threshold question in a medical malpractice case is the standard of
care.  Jones v. Miller, 966 S.W.2d 851, 854 (Tex. App.─Houston
[1st Dist.] 1998, no pet.).  The applicable standard must be
established so the fact finder can decide if the defendant deviated.
Id.  In medical malpractice cases, the standard of care must
be established by expert testimony unless the mode or form of treatment is
a matter of common knowledge or is within the experience of a
layman.  Jackson v. Axelrad, 221 S.W.3d 650, 655 (Tex.
2007).

To establish proximate cause, a plaintiff must prove both (1)
cause-in-fact, and (2) foreseeability.  Duff, 751 S.W.2d at
176.  Cause-in-fact requires the plaintiff to establish a causal
connection between the injuries suffered and the defendant’s breach of
duty based upon “reasonable medical probability,” not mere conjecture,
speculation, or possibility.  See Park Place Hosp., 909
S.W.2d at 511.  The ultimate standard of proof on causation is
“whether, by a preponderance of the evidence, the negligent act or
omission is shown to be a substantial factor in bringing about the harm
and without which the harm would not have occurred.”  Kramer v.
Lewisville Memorial Hosp., 858 S.W.2d 397, 400 (Tex. 1993).
Importantly, reasonable probability is determined by the substance and
context of an expert’s opinion, and does not turn on semantics or on the
use of a particular term or phrase.  Arlington Mem’l Hosp. Found.,
Inc. v. Baird, 991 S.W.2d 918, 922 (Tex. App.─Fort Worth 1999, pet.
denied) (citing Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 500
(Tex. 1995)).

Ortegon
alleges negligence in three different counts: (1) Benavides negligently
cut Ortegon’s bowel when he retrieved the sponge; (2) Benavides and Mercy
Hospital negligently left a surgical sponge in Ortegon, and (3) Benavides
negligently failed to timely diagnose and treat Ortegon’s cut bowel.

Bullock
testified that when a large cavity is opened, it is a breach of the
standard of care to close a patient prior to a full count of the surgical
sponges.  Additionally, he testified that Benavides’s failure to
properly diagnose and treat Ortegon’s cut bowel was negligence that
proximately caused her severe damages.  Bullock’s testimony can be
summed up as follows:

1.
Benavides cut Ortegon’s small bowel during the March 5th surgery,
proximately causing her resulting injuries, but this action was not
necessarily negligent depending on when the perforation occurred.

2.
The vaginal hysterectomy was difficult.  If the
punctured bowel occurred during the vaginal hysterectomy and not during
the retrieval of the sponge, there was no breach of
care.

3.
If Benavides cut Ortegon’s bowels when he reopened to
retrieve the sponge, he was negligent and thus proximately
caused all of Ortegon’s injuries.

4.
Benavides breached the standard of care when he closed Ortegon’s
incision prior to a complete sponge count.

5.
Bullock could not testify to a “reasonable degree of medical
probability” whether Benavides cut Ortegon’s intestines during the vaginal
hysterectomy or during the sponge retrieval.

1.
Bowel Damage During Sponge Retrieval

Benavides
argues that there is a “fatal gap” in the chain of causation.  He
asserts Bullock’s opinions on causation were never linked to any breach of
the standard of care.  We agree.

Without
question, Ortegon was very ill and suffered a number of complications as a
result of her surgery.  The record on appeal consists only of the
testimony of Bullock, Benavides, Maddox and Nurse Aldape.[2]
According to Bullock, if the bowel was cut during the hysterectomy, there
was no negligence.  If, on the other hand, the bowel was cut during
the sponge retrieval, then Benavides deviated from the standard of care
and was negligent.  Thus, we look to the record to determine if there
is any evidence of when, or if, the cut occurred.  The record,
however, contains no direct evidence of when, or even if, the bowel was
punctured during surgery rather than perforated as a result of an
obstruction.  In an attempt to establish that the cut occurred during
the sponge retrieval, Ortegon points to Benavides’s trial testimony:

Q:
Okay.  Doctor, I want you to answer the next question based on a
reasonable degree of medical probability.  During the vaginal
hysterectomy and before you reopened the cuff to retrieve the sponge, did
you cause any injury to Mrs. Ortegon’s bowel?

A:
No I did not.

From
this testimony, Ortegon concludes that if the puncture, or injury, did not
occur during the hysterectomy, then it must have taken place during the
sponge retrieval and this is sufficient evidence, combined with Bullock’s
testimony, to support Benavides was negligent.

Benavides
asserts his testimony is taken out of context as he actually testified
that he did not injure or perforate the bowel at any
time.  Benavides asserts the evidence supports the conclusion
that the bowel was not perforated during the first surgery, but instead
due to an obstruction which perforated shortly before the bowel repair
surgery on March 22nd.  We agree that Benavides’s testimony does not
amount to an admission that the perforation occurred during the sponge
retrieval.  Throughout trial, Benavides denied that he cut the bowel
during the sponge retrieval.  The refusal to admit injury to Ortegon
during the hysterectomy does not require a conclusion that a perforation
took place during the sponge retrieval.

There
is no evidence in the record that Benavides breached the standard of care
because Bullock could not state that the bowel was perforated during the
sponge retrieval procedure.  Through numerous questions, propounded
by multiple attorneys, Bullock affirmatively stated that based on
reasonable medical probability, the injury occurred on March 5th.
Whether it occurred during the hysterectomy or during the sponge
retrieval, however, he could only testify based on possibility rather than
probability.  Bullock could only testify that it was his “gut
feeling” that the injury to the bowel occurred during the
hysterectomy.  No other evidence was provided to indicate that the
perforation occurred during the sponge retrieval.  Without any
evidence of when the perforation occurred, Bullock’s testimony fails to
provide any evidence of a breach of the standard of care relating to the
bowel perforation.

Reviewing the evidence, as a whole, there is no evidence to support
Ortegon’s contention that Benavides negligently cut her bowel during the
sponge retrieval.  The burden of proof was on Ortegon to present
evidence raising a fact issue that, to a degree of reasonable medical
probability, the acts or omissions of Benavides were a breach of the
standard of care which proximately caused the injuries and damages alleged
by Ortegon.  Ortiz v. Santa Rosa Med. Ctr., 702 S.W.2d 701,
703 (Tex. App.―San Antonio 1985, writ ref’d n.r.e.) (holding that when a
trial court directs a verdict against the party bearing the burden of
proof, that party must show on appeal that it presented evidence on each
element of its claim).  Ortegon failed to meet this standard
and the trial court, therefore, correctly granted the instructed verdict
in favor of Benavides.

2.
Mercy Hospital Sponge Count

Mercy Hospital asserts that there was no probative evidence that any
employee or agent of Mercy Hospital caused any injury to Ortegon.  In
order to find Mercy Hospital negligent, Ortegon had to prove the surgical
nurse responsible for the sponge count was negligent and that this
incorrect count caused the reopening of the sutures and the resulting
perforation of the bowel.  The testimony, however, establishes that
the nurse correctly informed Benavides that the sponge count was
incomplete.  An x-ray was taken and the sponge was detected in
Ortegon’s pelvic region.  Benavides then cut the sutures and
retrieved the sponge in question.

Ortegon’s negligence claim is based on the hospital’s policy that sponges
must be counted at the beginning of surgery, before closing any deep or
large cavity, and at the end of surgery.  Ortegon asserts this is the
standard of care breached by Benavides and Mercy Hospital.  Without
question, the sponge count was not completed before closure.
Benavides testified that it was the nurse’s attention to the sponge
detail, albeit following closure, which alerted him to the possibility of
a missing surgical sponge.  Although Ortegon relies on the hospital’s
policy that sponges must be counted at the end of surgery as a standard of
care, there was no testimony that the nurse breached any standard of care
recognized by the medical community by finishing the sponge count after
closure.  Thus, the record lacks any evidence of any breach of the
standard of care by the nurse.

In
addition, there is no evidence that the sponge count, even if taken after
closure, caused the complications claimed by Ortegon.  Bullock
asserts that if the bowel was cut during the sponge retrieval, caused in
part by the lack of a sponge count before closure, then Mercy Hospital is
liable for the resulting damages.  As previously noted, the record
lacks any evidence that the bowel was cut upon re-entry to remove the
sponge.  Thus, the lack of evidence that the bowel was cut during the
sponge retrieval is fatal to the claim of negligence against Mercy
Hospital related to the sponge count.  Given the lack of evidence,
the trial court’s grant of a directed verdict was proper on this
claim.

3.
Disclosure and Treatment of Ortegon’s Cut Bowel

Ortegon
complains that the directed verdict was improper because there was some
evidence that Benavides was negligent in diagnosing and treating the
perforated bowel.  However, no expert testimony supported this
claim.  Even Bullock’s testimony supported Benavides’s actions in
consulting experts shortly after Ortegon started developing
problems.  Bullock could not say, with reasonable medical
probability, that Ortegon failed to properly administer antibiotics or
that he did not contact the proper consultants when Ortegon suffered
post-operative complications.  Bullock does not testify that
Benavides breached a standard of care in the diagnosis or treatment of the
perforated bowel.  As such, the trial court properly granted a
directed verdict on this claim in favor of Benavides.

C.
Non-Negligence Claims

Ortegon
argues that the trial court erred by refusing to submit her proposed jury
question concerning Benavides’s failure to disclose that he left a
surgical sponge in her pelvic area.  Additionally, she alleges that
Benavides and Mercy Hospital acted fraudulently in their attempts to hide
the truth from her and to keep her at the hospital and that the trial
court erroneously granted a directed verdict on these claims.

1.
Partial Record on Appeal

When an appellant fails to follow the appellate procedures relating to a
partial reporter’s record, the presumption arises that the omitted
portions of the record support the trial court’s judgment.
Christiansen, 782 S.W.2d at 843.  Here, because the
appellate record does not contain a complete record of the trial
proceedings, we must presume the omitted proceedings support the trial
court’s judgment.  Bennett, 96 S.W.3d at 229.  More
specifically, we presume that the omitted evidence, including Ortegon’s
testimony, supports the trial court’s grant of the directed verdict.
DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 689 (Tex. 1990).
Applying this presumption defeats Ortegon’s claims of fraud and lack of
disclosure as shown below.

2.
Fraud

Ortegon’s fraud claim appears to be that Benavides and Mercy Hospital
failed to disclose the truth about her March 5th surgery in order to keep
her at Mercy Hospital.  To establish her fraud claim, Ortegon was
required to show:

(1)
a material representation was made;

(2)
the representation was false;

(3)
when the representation was made, the speaker knew it
was false or made it without any knowledge of the truth and as a positive
assertion;

(4)
the representation was made with the intention that it
be acted upon by the other party;

(5)
the party acted in reliance upon the representation;
and

(6)
the party suffered injury.

Johnson & Higgins of
Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 524 (Tex. 1998);
Trevino v. Christus Santa Rosa Healthcare Corp., No.
04-01-00764-CV, 2002 WL 31423711, *3 (Tex. App.─San Antonio Oct. 30, 2002,
no pet.).  Because the record does not include Ortegon’s testimony,
there is no evidence of what information Ortegon did, or did not, receive
from either Benavides or Mercy Hospital.  Without evidence of some
misrepresentation, Ortegon fails to prove the first element of
fraud.  Johnson & Higgins, 962 S.W.2d at 524.
Additionally, without the reporter’s record regarding the alleged
misrepresentation to Ortegon and communication regarding the same, proof
of the remaining elements also fails.  Moreover, even assuming
material representations were made, Ortegon failed to provide any evidence
that, when the representations were made, Benavides knew the
representations were false.  Because we are bound by the presumption
that the record is complete, and that any material missing from the record
supports the trial court’s judgment, we cannot say the trial court erred
in granting the directed verdict with regard to the fraud claim.  We,
therefore, overrule this issue on appeal.

3.
Failure to Disclose

Ortegon claims the trial court erred in granting the directed verdict
regarding Benavides’s and Mercy Hospital’s failure to disclose the need to
retrieve the surgical sponge after Ortegon’s incision was closed.
During cross-examination, Dr. Gerald Bullock (“Bullock”), Ortegon’s
expert, testified that the nurse did not have an obligation to disclose;
but that in the event that Benavides was reluctant or refused to tell
Ortegon of any medical mistakes, then Mercy Hospital did have a duty to
disclose the mistake, i.e. the retained sponge.  Yet, Bullock could
not identify any support in the record that Benavides failed to disclose
or refused to discuss the surgical procedure with Ortegon.  Bullock
also acknowledged that there is no evidence Mercy Hospital was ever made
aware of Benavides’s failure to discuss the sponge retrieval with
Ortegon.  Absent Ortegon’s testimony, the record is silent with
regard to what information was actually disclosed to Ortegon regarding a
retained sponge and that any such alleged failure to disclose caused any
damages to Ortegon.  More importantly, because we are presented with
a partial record, we must presume the evidence supported the trial court’s
determination in favor of Benavides and we overrule this appellate
issue.

Improper Argument
of Counsel

In her next issue, Ortegon argues that the trial court reversibly erred
when defense counsel stated, in front of the jury, that Ortegon’s expert
witness should be advised of his rights, thus irreparably prejudicing
Ortegon’s rights to a fair trial free of taint.

During the presentation of the evidence, Benavides’s counsel stated “if
[Bullock] does intend to change [his sworn testimony], I think he should
be advised of his rights.”  These statements are analogous to
statements amounting to improper jury argument.  Importantly,
however, no objection was lodged at the time of the alleged error and
Ortegon’s counsel did not request the jury be instructed to disregard the
comments.  Although an objection is not required in order to preserve
error if the error is deemed to be incurable, Otis Elevator Co. v.
Wood, 436 S.W.2d 324, 333 (Tex. 1968), Ortegon not only failed to
object at trial, but she did not raise the alleged prejudicial remarks in
her motion for new trial.  A motion for new trial is necessary to
preserve a complaint of incurable jury argument, if not otherwise ruled on
by the trial court.  Tex. R.
Civ. P. 324(b).  Failure to raise the issue at trial, or on
the motion for new trial, waives appellate review.  Tex. R. App. P. 33.1(d).
We, therefore, overrule this issue on appeal.

Motion for New
Trial - Benavides’s Alleged Twitches

In her final appellate issue, Ortegon asserts the trial court erred in
failing to grant her motion for new trial based on newly discovered
evidence.  The alleged newly discovered evidence involved Benavides’s
so-called twitches.

A.
Standard of Review

An
appellate court reviews a trial court’s ruling on a motion for new trial
based on newly discovered evidence for an abuse of discretion.  In
re R.R., 209 S.W.3d 112, 114 (Tex. 2006); Stafford v. Southern
Vanity Magazine, Inc., 231 S.W.3d 530, 538 (Tex. App.—Dallas 2007,
pet. denied).  The trial court’s decision will not be disturbed
absent a “manifest abuse of discretion.”  Stafford, 231 S.W.3d
at 538.  A trial court abuses its discretion when it acts in an
arbitrary and unreasonable manner or without reference to any guiding
principles.  Id.

When a trial court refuses to grant or deny a motion for new trial based
on newly discovered evidence, every reasonable presumption will be made in
favor of the trial court’s decision.  Patriacca v. Frost, 98
S.W.3d 303, 307 (Tex. App.—Houston [1st Dist.] 2003, no pet.).
A party seeking a new trial on the ground of newly discovered evidence
must satisfy the court that: (1) the evidence came to his knowledge since
the trial; (2) it was not owing to want of due diligence that the evidence
had not come to his attention sooner; (3) the evidence is not cumulative;
and (4) the evidence is so material that it would probably produce a
different result if a new trial were granted.  Stafford,
231 S.W.3d at 538.

B.
Analysis

Ortegon’s
motion for new trial, based on newly discovered evidence, fails on several
grounds.  First, Ortegon’s counsel questioned Benavides about any
potential impairment during the trial and the alleged twitching was
addressed at trial.  The motion for new trial alleged new evidence
of perjury by Benavides − unrelated to the
“twitching.”  Although the alleged twitching is mentioned briefly in
the motion for new trial, it is not a point upon which Ortegon requested
the court to rule.

Second, a motion to obtain a new trial based on newly discovered evidence
must include some evidence supporting each element for the granting of the
new trial.  See Hensley v. Salinas, 583 S.W.2d 617, 618 (Tex.
1979).  Ortegon failed to provide any evidence specifically with
regard to the due diligence element.

Third, when the only purpose of the new evidence is to impeach a witness,
a new trial is generally not warranted.  Eckert v. Smith, 589
S.W.2d 533, 538 (Tex. App.─Amarillo 1979, writ ref’d n.r.e.).
Ortegon sought to introduce Benavides’s twitching to make it more
likely that he perforated the bowel during surgery.  However, because
the evidence does not establish when, or even if, Ortegon’s bowel was
punctured, the only purpose of such testimony is to impeach Benavides’s
qualifications as a competent surgeon and is thus improper.

Fourth, whether Benavides has a “twitch” is not evidence so material that
it would probably produce a different result in a new trial.  The
jury heard the testimony of Benavides and could see his twitches, if any,
present in the courtroom.  The new evidence must bring to light new
and independent truth so decisive it demonstrates justice was not
obtained.  New Amsterdam Cas. Co. v. Jordan, 359 S.W.2d
864, 867-68 (Tex. 1962).  There is no evidence that Benavides’s
alleged twitches had any effect on the March 5th surgery.  Therefore,
any alleged twitch cannot be said to be so material that it would produce
a different result.  Accordingly, the trial court did not err in
failing to grant the requested motion for new trial and we overrule this
issue on appeal.

Cross Appellant’s
Argument for Sanctions

Benavides
asserts the trial court abused its discretion by denying (1) his pretrial
Motion for Sanctions and Dismissal Pursuant to Section 13.01 of the former
Texas Medical Liability and Insurance Improvement Act because Ortegon’s
expert report failed to contain an adequate statement of causation and (2)
the allegations of Benavides’s medical problems and the request for a
medical and physical evaluation of Benavides were groundless and brought
in bad faith and for purposes of harassment.

A.
Standard of Review

“The
decision to impose a sanction is left to the discretion of a trial court
and will be set aside only upon a showing of a clear abuse of discretion.”
Phillips & Akers, P.C. v. Cornwell, 927 S.W.2d 276, 279
(Tex. App.―Houston [1st Dist.] 1996, no writ).  The test for abuse of
discretion is not whether, in the opinion of the appellate court, the
facts present an appropriate case for the trial court’s actions.
Rather, it is a question of whether the court acted without
reference to any guiding rules and principles.  Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

B.
Pretrial Motion for Sanctions

There were two different pretrial motions for sanctions, a motion to
dismiss pursuant to Section 74.351 and a motion for sanctions filed
approximately two months later in accordance with Texas Rule of Civil
Procedure 13 asserting that Ortegon’s allegations were frivolous.[3]
Ortegon asserts that although Benavides filed the motions, they were never
set or heard before the trial court.  The appellate record supports
Ortegon’s position only with regard to the lack of an order being entered
with the court.  The trial court’s docket sheet indicates that there
was an order setting these motions for a hearing, and the pleadings of the
parties suggest that the hearing was in fact held.  We do not,
however, have either an order or a transcript of these proceedings.[4]
In order to preserve error, the record must show that: (1) the complaint
was made to the trial court by a timely request, objection, or motion, and
(2) the trial court either expressly or implicitly ruled on the objection
or refused to rule with the complaining party objecting to the
refusal.  Tex. R. App.
P. 33.1(a); Martin v. Commercial Metals Co., 138 S.W.3d 619,
623 (Tex. App.―Dallas 2004, no pet.).  If no written order
overruling the objection is available, the record must reflect that the
trial court ruled on the party’s objections, either explicitly or
implicitly.  Tex. R. App.
P. 33.1(a)(2).  Therefore, in accordance with Rule 33.1,
Benavides failed to preserve error on this issue.

C.
Benavides’s Motion for Sanctions on Ortegon’s Discovery
Requests of a Mental and Physical Examination of Benavides

On August 15, 2005, after trial had commenced and four months after taking
Benavides’s deposition, Ortegon filed a motion entitled “Plaintiff’s
Request to Inquire Into Medical Problems” regarding Benavides’s health.[5]
Additionally, two weeks after trial, Ortegon requested depositions of
Benavides and others purported to inquire into Benavides’s medical status
and sought a mental and physical examination of Benavides.  Benavides
filed a motion for sanctions alleging the motions, discovery and pleadings
were filed for improper purposes.  During the hearing on the motion
for sanctions, the trial court heard testimony, and reviewed the
evidence.  A review of the record does not, however, include a ruling
by the trial court or a signed order.  Therefore, for the same
reasons stated above, Benavides has failed to preserve error with regard
to the trial court’s failure to award sanctions.  Tex. R. App. P. 33.1.

Conclusion

Ortegon’s request to file a statement of appellate points and supplemental
reporter’s record after the parties’ initial briefing is too late.
Substantial prejudice would result to Benavides if additional evidence
were considered after the completion of briefing in this case.  We,
therefore, deny appellant’s motion to late designate points or issues and
refuse to consider the supplemental reporter’s record submitted after the
case was “at issue.”

With the exception of the res ipsa loquitor claim, Ortegon failed to prove
Benavides’s medical malpractice, by expert testimony.  Accordingly,
the trial court properly granted the directed verdict on the medical
malpractice causes of action.

Ortegon failed to preserve error with regard to any alleged improper
argument by counsel.  By failing to direct the trial court’s
attention to the same, Ortegon waived any resulting error.  Moreover,
because Ortegon’s motion for new trial was not based on newly discovered
evidence of any alleged twitches of Benavides, was not verified, was
solely intended to impeach Benavides and was not so material that it would
probably produce a different result, the trial court properly denied the
motion for new trial.

Finally, the record is barren of any order regarding Benavides’s motions
for sanctions.  Accordingly, Benavides failed to preserve error and
we overrule these issues on appeal.

Rebecca Simmons,
Justice

[1]
We exclude from discussion the res ipsa loquitor claim that was
tried before the jury.

[2]
Because of the untimely supplementation of the reporter’s record after
submission, we do not consider the supplemented record.

[3]
Benavides cites to Article 4590i, Section 13.01 in his motion to
dismiss.  However, Article 4590i was repealed in 2003 and recodified
at Texas Civil Practice and Remedies Code Section 74.351.  Act of
June 2, 2003, 78th Leg., R.S., ch. 204, §10.09, 2003 Tex. Gen. Laws 847,
884 (amended 2003) (current version at Tex. Civ. Prac. & Rem. Code
Ann. § 74.351 (Vernon Supp. 2007)).  Because the underlying suit was
filed after September 1, 2003, we interpret Benavides references to 4590i
as references to Section 74.351.

[4]
Benavides concedes there is no reporter’s record based on the reporter’s
assertions that “the transcript of such hearing could not be reproduced
because the original recording could not be found.”

[5]
The motion requested Ortegon be allowed to “cross examine Dr. Benavides
regarding medical problems to determine the cause of his ticking and
twitching.”  The motion also alleged that “Plaintiff’s counsel has
been informed by Mr. Ortegon that Dr. Benavides may have Parkinson’s
disease or similar
ailment.”