OPINION
Emmanuel Melissinos appeals the trial court’s judgment awarding damages to Thongkhan Phamanivong for injuries arising out of medical treatment performed by Melissinos. Melissinos claims that the trial court erred in the manner in which it submitted jury questions concerning failure to obtain informed consent to the surgical procedures performed and for fraud in failing to obtain that consent. He also claims that the evidence is legally and factually insufficient to support the jury findings concerning the questions on informed consent and loss of earnings. Phamanivong replies to the points of error brought by Melissinos, but first presents a threshold question whether Melissinos waived his right to attack the jury’s findings by asking the trial court to enter a judgment on the verdict. We determine that Melissinos did not waive his right to challenge the jury’s findings and that the trial court did not err in rendering judgment based upon fraudulent failure to obtain consent. However, we hold that the jury finding on loss *341 of earning capacity is not supported by legally sufficient evidence. Therefore, we modify the judgment to delete the recovery for loss of earning capacity, and, as modified, we affirm the trial court’s judgment.
Phamanivong, a Laotian refugee who speaks no English, severed his thumb, index finger, and part of the middle finger from his right hand in a work-related accident on July 21, 1981. When he was taken to the hospital, the staff assigned Melissi-nos as the physician to treat him. The immediate treatment consisted of cleaning the crushed hand, removing tissue, and surgically placing the severed thumb bone in Phamanivong’s groin, storing it for possible later use. Hospital records indicate that the physicians had determined to perform a surgical treatment called the “Morrison procedure.” This procedure involves removing skin tissue, arteries, and bone from the big toe and attempting to use this material to reconstruct the thumb. On July 30, through the use of an interpreter, several doctors attempted to obtain Phama-nivong’s consent for the Morrison procedure. After this procedure was thoroughly explained to him, Phamanivong refused to give his consent.
About a week later, Melissinos and others again attempted to obtain Phamani-vong’s consent for the Morrison procedure. The hospital called Sang Seunsom, formerly the director of education in Laos who works for the International Rescue Committee in Houston and who had served as an interpreter in court proceedings, to act as an interpreter. Although the extent, content, and even the date of Melissinos’ conference with Phamanivong concerning the consent to the procedure were disputed, the jury believed Phamanivong’s version, which was corroborated by Seunsom. Phamanivong described a brief conference in which Melissinos described an incision, drainage and skin graft, which would result in a normal-looking thumb and big toe. Melissinos failed to advise of any risks and also advised Phamanivong that if he wanted a job in the future, he would need the surgery and that he had to decide immediately.
Seunsom apparently was a particularly effective witness. The physicians who testified essentially stated that if Melissinos relayed to Phamanivong the information as Seunsom testified to it, it would be so misleading as to amount to a misrepresentation. Two physicians, Edward Withers and Stephen Ramey, testified that, even when successful, the Morrison procedure does not result in a normal-appearing thumb or toe and that this should be related to a patient before seeking that patient’s consent.
Phamanivong ultimately consented to a procedure described as an incision, drainage, and skin graft. Melissinos performed the Morrison procedure on August 10, 1981. When Phamanivong regained consciousness after surgery and learned that part of his toe had been placed on his thumb, he was severely distressed. Later, he entertained suicide as a result.
An infection developed in the part of the toe that had been placed on the thumb and part of the bone in the reconstructed thumb was lost. When discharged from the hospital on September 14,1981, Phama-nivong had an open thumb wound. He was readmitted to the hospital October 11,1981, and stayed in the hospital for two additional skin graft surgeries, until his discharge on December 2, 1981.
A rehabilitation specialist, who met Phamanivong in February 1982, found him to be upset and depressed. She described his hand and foot as grotesquely deformed. Photographs, viewed by the jury, depicted the appearance of the hand and foot. Additionally, the jury personally viewed the hand and foot at the time of trial.
At the time of his accident, Phamanivong was earning $4.00 per hour. After the surgery, he was unable to work for most of six years. At the time of trial, he had obtained employment and was performing janitorial work. The bottom tissue pad was missing from his right big toe and, although when he walked he held his injured toe off of the ground, he was unable to walk without pain. The appearance of his hand and foot caused Phamanivong to be embarrassed and he attempted to keep *342 them covered. With this factual background, we turn to the legal issues presented.
WAIVER OF RIGHT TO CHALLENGE FINDINGS
It is initially appropriate to address Phamanivong’s point that Melissinos has waived the right to challenge the jury’s findings. If this is a valid point, other issues become moot. Phamanivong’s point is grounded upon post-verdict acts by Mel-issinos’ attorney. After verdict, Phamani-vong’s attorney filed a motion for judgment on the verdict. Melissinos’ attorney responded to this motion, attacking essentially the claim for prejudgment interest. The prayer for relief in the response to the motion for judgment is critical to our decision. In that prayer, Melissinos’ attorney asks that the motion for judgment be denied and alternatively asks for entry of a judgment for an amount less than that sought.
1
Ordinarily, when a party moves for judgment based upon the jury verdict, the party is considered to have waived any attack on the factual sufficiency of the jury’s findings on appeal.
Litton Indus. Prod., Inc. v. Gammage,
Our decision then is whether the Gammage rule of waiver or the Fojtik rule of no waiver of the right to complain of the fact findings should apply under the present circumstances. Based upon Melis-sinos’ initial request that Phamanivong’s motion for judgment be denied, coupled with the alternative request for entry of judgment in an amount less than that requested, we conclude that the post-verdict acts of the attorney for Melissinos did not operate to waive the right to challenge the factual findings on appeal. We conclude this based upon the words used by Melissi-nos in response to Phamanivong’s motion for judgment, the other post-verdict actions—including a motion for new trial—of the attorney for Melissinos. Also, our conclusion is based upon a sense that procedural rules are, after all, designed to be construed to facilitate a just determination of the merits of a legal controversy. 2 Procedural rules are not designed to elevate form over substance. Having determined that Melissinos has not waived his right to challenge the jury’s findings, we now turn to the issues he presents on appeal.
SUBMISSION OF JURY QUESTIONS
Melissinos claims that the trial court erred in several respects concerning *343 the submission of jury questions. He complains that the court erred in refusing a jury question which he requested and in submitting another question concerning informed consent. The trial court refused to submit a jury question requested by Melis-sinos which dealt with informed consent. 3 Melissinos contends that the submission of this question is required by the Texas Pattern Jury Charges under both common law and the Medical Liability and Insurance Improvement Act. Tex.Rev.Civ.Stat.Ann. art. 4590i (Vernon Supp.1991). Although the Texas Pattern Jury Charges is not mandatory on trial courts, the suggested charges are persuasive. The suggested questions for a common law cause of action for failure to obtain informed consent ask whether the doctor failed to obtain informed consent, define informed consent, ask whether a person of ordinary prudence would have refused the treatment if the risks had been disclosed and, lastly, ask whether the failure was a proximate cause of injury. 4 This pattern jury charge submits the doctrine of informed consent under the common law. The first comment under 3 State Bar of Texas, Texas Pattern Jury Charges PJC 51.11 (2nd ed. 1990) is that the charge should be used only in cases arising from events earlier than August 29, 1977. 5 And the caveat is that the charge should apply only in rare instances. PJC 51.11, p. 51-22. We conclude that the court did not err in failing to charge on the doctrine of informed consent under the common law as requested by Melissinos’ attorney.
We now consider whether the court erred in failing to submit the doctrine of informed consent as requested by Melissi-nos’ attorney under the Medical Liability and Insurance Improvement Act. Again, Melissinos’ complaint is that for a cause for a failure to obtain informed consent, there must be a question on the decisional element of the cause. Melissinos relies on the case of
McKinley v. Stripling,
The trial court submitted this case to the jury on broad-form questions asking whether Melissinos failed to obtain consent, whether in so doing he committed fraud, and whether those acts were a proximate cause of injury to Phamanivong. In connection with those questions, the trial court submitted a definition of informed consent. 6 We find no great distinction between the language in McKinley, which requires that a reasonable person — as opposed to the plaintiff — would have refused the treatment, and the language used in *344 the definition, which requires that the patient would be influenced in making the decision for the treatment. The definition, along with the questions submitted to the jury, sufficiently submitted this case based upon a lack of informed consent.
We also find no trial court error in submitting both the informed consent and fraud causes of action. Tex.Rev.Civ.Stat. ANN. art. 4590i, the Medical Liability and Insurance Improvement Act, states:
In a suit against a physician or health care provider involving a health care liability claim that is based on the failure of the physician or health care provider to disclose or adequately to disclose the risks and hazards involved in the medical care or surgical procedure rendered by the physician or health care provider, the only theory on which recovery may be obtained is that of negligence in failing to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent.
Tex.Rev.Civ.Stat.Ann. art. 4590i, § 6.02. Although the informed consent cause of action must be brought under the Medical Liability and Insurance Improvement Act, a fraud cause of action does not need to. Here, more than mere misrepresentations were made by Melissinos in the procuring of consent. The misrepresentations by Melissinos included statements that the toe and thumb would be normal. In
Gaut v. Quasi,
there was no separate basis of recovery for informed consent and fraud under the common law.
Gaut v. Quast,
In complaining about the manner of submission of the case to the jury, Melis-sinos faces the obstacle that the trial court is generally allowed broad discretion in submitting the charge to the jury in the trial of a case.
See
Part II, Section 11, D, entitled CHARGE TO THE JURY, Tex. R.Civ.P. 271-279. In submitting cases to the jury upon broad-form questions, the trial court exercises broad discretion.
Texas Dep’t of Human Serv. v. E.B.,
EVIDENTIARY ISSUES
Melissinos also maintains that there is no evidence or insufficient evidence to support the jury’s findings on the decisional element of informed consent, the finding of fraud in failing to obtain informed consent, the finding of lost earnings in the past, and the finding of loss of earning capacity.
In reviewing a no evidence point of error, only the evidence which supports the jury’s verdict may be considered; all contrary evidence must be disregarded.
Sherman v. First Nat’l Bank,
The jury found that Melissinos committed fraud in failing to obtain informed consent. Persuasive evidence that Phamanivong would not choose to have the Morrison procedure performed if he had been fully informed is Phamanivong’s initial refusal to consent to the procedure when it was fully explained to him. Concerning the subsequent effort to obtain Phamanivong’s consent, the interpreter who was used as a conduit between Melissi-nos and Phamanivong testified that Melissi-nos never informed Phamanivong that the operation would involve the removal of nerves, blood vessels, tissue and bone from the big toe. Further, Phamanivong himself testified that he was told his toe and thumb would be normal after the operation. There was also testimony from medical doctors that the failure to inform the patient that this removal would occur would be a misrepresentation. When the jury is presented with conflicting evidence, it may choose to believe one witness and disbelieve others, or it may resolve inconsistencies in the testimony of any witness.
McGalliard v. Kuhlmann,
The jury also found that Phamani-vong had a loss of earnings in the past as a result of this operation. There is some evidence to support the jury’s finding. Testimony adduced at trial revealed that Phamanivong could not wear the shoes required to get his old job back after the operation. There was also testimony that he may have been able to get his job back if the operation had not occurred. Here, the jury found lost wages and not diminished earning capacity. The testimony revealed that Phamanivong was employed for a number of months before the accident and that he was receiving $4.00 an hour. There is enough evidence for this finding to be factually sufficient.
The final jury finding which Melissinos contends is legally and factually insufficient is the jury finding of loss of earning capacity. This is a loss of future earning capacity as distinguished from loss of past earnings. The determination of loss of future earning capacity, like that of future medical expenses, is up to the jury’s discretion; however, the evidence must provide some degree of certainty of future damages.
Harvey v. Culpepper,
The judgment of the trial court is, therefore, modified to delete recovery for the $62,500.00 loss of earning capacity as fixed by the court and, as modified, is affirmed.
Notes
. The prayer for relief is as follows:
WHEREFORE, PREMISES CONSIDERED, Defendant, Emmanuel Melissinos, M.D., prays that his (sic) Honorable Court deny Plaintiff’s Motion for Judgment; deny Plaintiff’s request for an award of taxable costs in the amount of the interpreting fee paid by the Plaintiff; in the alternative, enter judgment in favor of the Plaintiff in the amount of Six Hundred Ninety Three Thousand One Hundred Forty Seven and 56/100 Dollars ($693,147.56); and for such other and further relief to which Defendant may be justly entitled.
. Tex.R.Civ.P. 1 emphasizes this overall design. It provides that;
The proper objective of rules of civil procedure is to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law. To the end that this objective may be attained with as great expedition and dispatch and at the least expense both to the litigants and to the state as may be practicable, these rules shall be given a liberal construction.
. "Do you find from a preponderance of the evidence that if those risks had been so disclosed, that a reasonable person of ordinary prudence would have refused such surgery under the same or similar circumstances?” This is said to submit the decisional element of an informed consent charge. That is, what would a reasonably prudent person have decided had he been fully informed.
. 3 State Bar of Texas, Texas Pattern Jury Charges PJC 51.11 (2nd ed. 1990) gives the following , definition: " "Informed consent” means consent given by a patient to whom such risks incident to treatment by radiation therapy have been disclosed as would be disclosed to the patient by a physician of ordinary prudence under the same or similar circumstances."
. This is the effective date of the Medical Liability and Insurance Improvement Act of Texas, Tex.Rev.Civ.Stat.Ann. art. 4590i (Vernon Supp. 1991).
. The court instructed that: “"Informed Consent" means consent given by a patient who has been informed by a physician of the risks and hazards incident to the Morrison Procedure which could influence a reasonable person in making a decision to consent to the procedure.”