Justice Scott Brister would require trial judge to go after attorneys when blood cannot be drawn from dead malpractice plaintiff -- as punishment for bringing health care liability claim without expert report. Hecht would join in the blood-letting to further enfeeble the plaintiff's bar in the name of legislative intent and in denigration of "the American Rule" against fee recovery by prevailing defendants.
Gurkoff, D.O. v. Jersak, No. 08-0398 (Tex. Feb. 27, 2009)(Brister)(Dissent from denial of petition for review) (urging that sanctions in the form of defendant's attorney's fees for failure to file expert report in medical malpractice suit be imposed on plaintiff's attorneys when no money can be collected from client's estate)
EXCERPT FROM THE BRISTERING DISSENT:
Generally, trial judges should hesitate to impose sanctions on an attorney lest they chill zealous representation. But the Legislature found that such hesitation was driving physicians from Texas and patients from medical care they needed.[7] When an attorney is responsible for filing a suit without expert support, it is both illogical and wasteful to insist that the defendant pursue a plaintiff with no assets. Accordingly, I would reverse the court of appeals' opinion and order the trial court to assess sanctions against Jersak's attorneys.
JERRY GURKOFF, D.O. v. ROSEMARY JERSAK; from Tarrant County; 2nd district (02‑07‑00101‑CV, ___ SW3d ___, 04‑10‑08) Justice Brister, joined by Justice Hecht, delivered an opinion dissenting from the denial
Showing posts with label HCLC Texas. Show all posts
Showing posts with label HCLC Texas. Show all posts
Saturday, March 28, 2009
Friday, August 15, 2008
Is a hospital bed a medical device?
Broken-bed case taken up by the Texas Supreme Court for the second time. Oral argument to be heard September 11, 2008 in Marks v. St. Luke's Episcopal Hospital.
Appellate judges and advocates still disagree whether suit over injuries attributable to patient's fall from defective hospital bed is properly characterized as a medical negligence or a premises defect claim.
No. 07-0783
IRVING W. MARKS v. ST. LUKE'S EPISCOPAL HOSPITAL; from Harris County; 1st district (01-04-00228-CV, 229 SW3d 396, 05-03-07)
OPINION BELOW: Marks v. St. Luke's Episcopal Hospital
No. 01-04-00228-CV, 229 S.W.3d 396 (Tex.App.- Houston [1st Dist.] May 3, 2007)(Nuchia)(opinion on remand)(HCLC, standard of care, nature of claim, expert report)
AFFIRM TC JUDGMENT: Opinion by Justice Nuchia
Before Justices Nuchia, Jennings and Alcala
Full case style: Irving W. Marks v. St. Luke's Episcopal Hospital
Appeal from 215th District Court of Harris County (Judge Levi J. Benton)
FROM THE MAJORITY OPINION OF THE COURT OF APPEALS ON REMAND
Appellant, Irving W. Marks, appeals from a final order dismissing his claims against appellee, St. Luke's Episcopal Hospital ("St. Luke's"), for failure to file expert reports as required by statute for health care liability claims. In our original opinion, we held that appellant's underlying complaint in his original petition related to premises liability, not medical liability, and that appellant's complaint was governed by an ordinary standard of care. We reversed the trial court's order dismissing appellant's claims and remanded the case to the trial court for further proceedings. (1)
Subsequent to our opinion, the Texas Supreme Court concluded that a patient's claims that a nursing home's negligence in failing to provide adequate supervision and nursing services proximately caused her injuries from a sexual assault by another patient could be characterized as a departure from accepted standards of safety and were therefore governed by the Medical Liability Insurance Improvement Act (the MLIIA). (2) See Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005). On St. Luke's petition for review of our opinion, the supreme court vacated our judgment and remanded the case for further consideration in light of that Court's decision in Diversicare. (3)
On remand, we must first consider whether, in light of Diversicare, appellant's complaint is governed by the MLIIA. Because we conclude that appellant's original petition asserted a departure from accepted safety standards and is therefore a health care liability claim, we must also consider whether the trial court abused its discretion in denying appellant's motion for a grace period in which to file his experts' reports to support his claim. We hold that the trial court did not abuse its discretion and affirm the trial court's judgment.
* * *
Because we conclude that all the complaints in appellant's original petition relate to departures from accepted standards of medical care, health care, or safety, we further conclude that these claims are governed by the MLIIA.
* * *
St. Luke's filed its motion to dismiss on January 23, 2004. The trial court conducted a hearing on that motion on February 3, 2004 and conducted an additional hearing on February 6 at appellant's request. Appellant filed his motion for a grace period on February 5 and presented it to the trial court on February 6. Appellant's motion was untimely because it was not filed before any hearing on St. Luke's motion, and the trial court was not required to grant appellant a 30-day extension to file his experts' reports. Therefore, the trial court did not abuse its discretion in denying appellant's motion. See Strom v. Mem'l Hermann Hosp. Sys., 110 S.W.3d 216, 226 (Tex. App.--Houston [1st Dist.] 2003, pet. denied) (holding that denial of untimely request was not abuse of discretion); Jackson v. Reardon, 14 S.W.3d 816, 819 (Tex. App.--Houston [1st Dist.] 2000, no pet.) (same).
We overrule appellant's second issue.
Justice Jennings wrote separately in Marks v. St. Luke's
Here, Marks is actually complaining of the hospital bed's footboard that gave way under his weight. In this regard, he is not making a claim for "treatment, lack of treatment, or other claimed departure from accepted standards of medical care or health care or safety." Unlike the claims made by Rubio in Diversicare, Marks's claim about the hospital bed implicates negligent maintenance, not health care. He is not fracturing or recasting a statutorily defined health care liability claim into a premises liability claim. Like an "unlocked window" or a "rickety staircase," the hospital bed in this case constituted "a dangerous condition," and Marks's premises liability claim is in fact separate from St. Luke's provision of health care. As such, Marks's allegations reveal a circumstance that gives rise to a premises liability claim in a healthcare setting that may not be properly classified as a health care liability claim. See id. at 854.
In concluding otherwise, the majority of this court errs. Accordingly, I would reverse the trial court's order in regard to Mark's premises liability claim. I would affirm the trial court's order only to the extent that it dismissed the actual health care liability claims of Marks.
Appellate judges and advocates still disagree whether suit over injuries attributable to patient's fall from defective hospital bed is properly characterized as a medical negligence or a premises defect claim.
No. 07-0783
IRVING W. MARKS v. ST. LUKE'S EPISCOPAL HOSPITAL; from Harris County; 1st district (01-04-00228-CV, 229 SW3d 396, 05-03-07)
OPINION BELOW: Marks v. St. Luke's Episcopal Hospital
No. 01-04-00228-CV, 229 S.W.3d 396 (Tex.App.- Houston [1st Dist.] May 3, 2007)(Nuchia)(opinion on remand)(HCLC, standard of care, nature of claim, expert report)
AFFIRM TC JUDGMENT: Opinion by Justice Nuchia
Before Justices Nuchia, Jennings and Alcala
Full case style: Irving W. Marks v. St. Luke's Episcopal Hospital
Appeal from 215th District Court of Harris County (Judge Levi J. Benton)
FROM THE MAJORITY OPINION OF THE COURT OF APPEALS ON REMAND
Appellant, Irving W. Marks, appeals from a final order dismissing his claims against appellee, St. Luke's Episcopal Hospital ("St. Luke's"), for failure to file expert reports as required by statute for health care liability claims. In our original opinion, we held that appellant's underlying complaint in his original petition related to premises liability, not medical liability, and that appellant's complaint was governed by an ordinary standard of care. We reversed the trial court's order dismissing appellant's claims and remanded the case to the trial court for further proceedings. (1)
Subsequent to our opinion, the Texas Supreme Court concluded that a patient's claims that a nursing home's negligence in failing to provide adequate supervision and nursing services proximately caused her injuries from a sexual assault by another patient could be characterized as a departure from accepted standards of safety and were therefore governed by the Medical Liability Insurance Improvement Act (the MLIIA). (2) See Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005). On St. Luke's petition for review of our opinion, the supreme court vacated our judgment and remanded the case for further consideration in light of that Court's decision in Diversicare. (3)
On remand, we must first consider whether, in light of Diversicare, appellant's complaint is governed by the MLIIA. Because we conclude that appellant's original petition asserted a departure from accepted safety standards and is therefore a health care liability claim, we must also consider whether the trial court abused its discretion in denying appellant's motion for a grace period in which to file his experts' reports to support his claim. We hold that the trial court did not abuse its discretion and affirm the trial court's judgment.
* * *
Because we conclude that all the complaints in appellant's original petition relate to departures from accepted standards of medical care, health care, or safety, we further conclude that these claims are governed by the MLIIA.
* * *
St. Luke's filed its motion to dismiss on January 23, 2004. The trial court conducted a hearing on that motion on February 3, 2004 and conducted an additional hearing on February 6 at appellant's request. Appellant filed his motion for a grace period on February 5 and presented it to the trial court on February 6. Appellant's motion was untimely because it was not filed before any hearing on St. Luke's motion, and the trial court was not required to grant appellant a 30-day extension to file his experts' reports. Therefore, the trial court did not abuse its discretion in denying appellant's motion. See Strom v. Mem'l Hermann Hosp. Sys., 110 S.W.3d 216, 226 (Tex. App.--Houston [1st Dist.] 2003, pet. denied) (holding that denial of untimely request was not abuse of discretion); Jackson v. Reardon, 14 S.W.3d 816, 819 (Tex. App.--Houston [1st Dist.] 2000, no pet.) (same).
We overrule appellant's second issue.
Justice Jennings wrote separately in Marks v. St. Luke's
Here, Marks is actually complaining of the hospital bed's footboard that gave way under his weight. In this regard, he is not making a claim for "treatment, lack of treatment, or other claimed departure from accepted standards of medical care or health care or safety." Unlike the claims made by Rubio in Diversicare, Marks's claim about the hospital bed implicates negligent maintenance, not health care. He is not fracturing or recasting a statutorily defined health care liability claim into a premises liability claim. Like an "unlocked window" or a "rickety staircase," the hospital bed in this case constituted "a dangerous condition," and Marks's premises liability claim is in fact separate from St. Luke's provision of health care. As such, Marks's allegations reveal a circumstance that gives rise to a premises liability claim in a healthcare setting that may not be properly classified as a health care liability claim. See id. at 854.
In concluding otherwise, the majority of this court errs. Accordingly, I would reverse the trial court's order in regard to Mark's premises liability claim. I would affirm the trial court's order only to the extent that it dismissed the actual health care liability claims of Marks.
Suing the Governmental Unit or the Government Employee: Franka MD v. Velasquez set for oral argument
TO SUE OR NOT TO SUE - THE GOVERNMENTAL UNIT or THE GOVERNMENT'S EMPLOYEE
Can the defendants have it both ways? Argue that the employees be dismissed because the proper defendant is the entity (here UT Health Science Center), and have suit against the entity dismissed because the entity partakes of the state's sovereign immunity?
07-0131
JOHN CHRISTOPHER FRANKA, M.D. AND NAGAKRISHNA REDDY, M.D. v. STACEY VELASQUEZ AND SARAGOSA ALANIZ, BOTH INDIVIDUALLY AND AS NEXT FRIENDS OF THEIR MINOR CHILD, SARAGOSA MARIO ALANIZ; from Bexar County; 4th district (04-06-00190-CV, 216 SW3d 409, 09-06-06)
This cause has been set for oral argument at 9:00 a.m., September 10, 2008. Time allotted to argue: 20/20 minutes
Opinion with dissent below: Franka v. Velasquez (Tex.App.- San Antonio, Sep. 6, 2006, pet. granted) (med-mal suit against governmental unit or employee, employee's motion to substitute the entity and motion to dismiss)
Courts Below Denied Employees' Motion to Dismiss:
John Christopher Franka, M.D. and Nagakrishna Reddy, M.D. appeal the trial court's orders denying their motion for summary judgment of substitution or dismissal. Franka and Reddy contend that the trial court erred in denying their motion because they were entitled to be dismissed from the underlying cause pursuant to section 101.106(f) of the Texas Civil Practice and Remedies Code.
Because we hold that Franka and Reddy failed to establish that the underlying lawsuit could have been brought against the University of Texas Health Science Center, we affirm the trial court's orders.
The statutory provision at issue:
If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee's employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee's official capacity only.
On the employee's motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.
Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f) (Vernon 2005).
The Court of Appeals would not leave the plaintiff without a remedy. Given its track record in judicial tort reform generally, and its rulings favoring governmental defendants in the name of immunity specifically, the Texas Supreme Court may disagree.
Franka and Reddy appear to be suggesting that the raising of a fact issue as to whether the suit "could have been brought under this chapter against the governmental unit" should be sufficient to enable a trial court to dismiss employees under section 101.106(f). Such a suggestion is untenable in view of its potential result. If the employees were dismissed and immunity was ultimately held not to have been waived, the plaintiffs would be left without a remedy. Just as a plea to the jurisdiction cannot be granted, thereby resulting in the dismissal of a lawsuit, when a fact issue exists, see Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227-28 (Tex. 2004), a trial court also is not permitted to dismiss employees from a lawsuit under section 101.106(f) if a fact issue exists with regard to whether the governmental unit's immunity is waived. When such a fact issue exists, the employees have failed to establish that the suit "could have been under this chapter against the governmental unit." Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f) (Vernon 2005).
The trial court's orders are affirmed.
Can the defendants have it both ways? Argue that the employees be dismissed because the proper defendant is the entity (here UT Health Science Center), and have suit against the entity dismissed because the entity partakes of the state's sovereign immunity?
07-0131
JOHN CHRISTOPHER FRANKA, M.D. AND NAGAKRISHNA REDDY, M.D. v. STACEY VELASQUEZ AND SARAGOSA ALANIZ, BOTH INDIVIDUALLY AND AS NEXT FRIENDS OF THEIR MINOR CHILD, SARAGOSA MARIO ALANIZ; from Bexar County; 4th district (04-06-00190-CV, 216 SW3d 409, 09-06-06)
This cause has been set for oral argument at 9:00 a.m., September 10, 2008. Time allotted to argue: 20/20 minutes
Opinion with dissent below: Franka v. Velasquez (Tex.App.- San Antonio, Sep. 6, 2006, pet. granted) (med-mal suit against governmental unit or employee, employee's motion to substitute the entity and motion to dismiss)
Courts Below Denied Employees' Motion to Dismiss:
John Christopher Franka, M.D. and Nagakrishna Reddy, M.D. appeal the trial court's orders denying their motion for summary judgment of substitution or dismissal. Franka and Reddy contend that the trial court erred in denying their motion because they were entitled to be dismissed from the underlying cause pursuant to section 101.106(f) of the Texas Civil Practice and Remedies Code.
Because we hold that Franka and Reddy failed to establish that the underlying lawsuit could have been brought against the University of Texas Health Science Center, we affirm the trial court's orders.
The statutory provision at issue:
If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee's employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee's official capacity only.
On the employee's motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.
Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f) (Vernon 2005).
The Court of Appeals would not leave the plaintiff without a remedy. Given its track record in judicial tort reform generally, and its rulings favoring governmental defendants in the name of immunity specifically, the Texas Supreme Court may disagree.
Franka and Reddy appear to be suggesting that the raising of a fact issue as to whether the suit "could have been brought under this chapter against the governmental unit" should be sufficient to enable a trial court to dismiss employees under section 101.106(f). Such a suggestion is untenable in view of its potential result. If the employees were dismissed and immunity was ultimately held not to have been waived, the plaintiffs would be left without a remedy. Just as a plea to the jurisdiction cannot be granted, thereby resulting in the dismissal of a lawsuit, when a fact issue exists, see Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227-28 (Tex. 2004), a trial court also is not permitted to dismiss employees from a lawsuit under section 101.106(f) if a fact issue exists with regard to whether the governmental unit's immunity is waived. When such a fact issue exists, the employees have failed to establish that the suit "could have been under this chapter against the governmental unit." Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f) (Vernon 2005).
The trial court's orders are affirmed.
Friday, June 6, 2008
2008-06-06 Texas Supreme Court Decisions with Links to Opinions
Court issues two mandamus decisions involving sufficiency of expert reports in health care liability suits and one eminent domain ruling involving the University of Houston. Supreme Court also denies numerous petitions for review with today's orders.
FKM Partnership, Ltd. v. Bd. of Regents of Univ. of Houston System, No. 05-0661 (Tex. Jun 6, 2008) (Phil Johnson) (eminent domain, condemnation)
FKM PARTNERSHIP, LTD., A TEXAS LIMITED PARTNERSHIP v. BOARD OF REGENTS OF THE UNIVERSITY OF HOUSTON SYSTEM; from Harris County; 14th district (14-03-00392-CV, 178 S.W.3d 1, 04-14-05) 2 petitions The Court affirms the court of appeals' judgment and remands the case to the trial court.Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice O'Neill, Justice Wainwright, Justice Brister, Justice Medina, and Justice Green joined.
Justice Willett delivered an opinion concurring in part and dissenting in part.
In Re Roberts, No. 05-0362 (Tex. Jun 6, 2008)(per curiam) (med-mal, grant of 30-day extension to cure deficiencies in expert report was proper, mandamus granted against court of appeals which ruled otherwise)
IN RE SUSAN ROBERTS AND JOHN R. ROBERTS, JR., INDIVIDUALLY AND AS NEXT FRIENDS OF THEIR MINOR CHILDREN JAMIE ROBERTS, JOSHUA ROBERTS, AND HALEY ROBERTS; from Potter County; 7th district (07-04-00363-CV, ___ S.W.3d ___, 4-27-05) relators' motion for emergency relief deniedPursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus.Per Curiam Opinion (Justice Johnson not sitting)
In re Methodist Healthcare System of San Antonio, Ltd, No. 05-0575 (Tex. Jun 6, 2008)(per curiam)(HCLC, sufficiency of expert report, in medical malpractice suit)(court below instructed to apply new mandamus standard)
IN RE METHODIST HEALTHCARE SYSTEM OF SAN ANTONIO, LTD., D/B/A METROPOLITAN METHODIST HOSPITAL; from Bexar County; 4th district (04-05-00305-CV, ___ S.W.3d ___, 05-25-05) stay order issued September 16, 2005, liftedmotion to consolidate dismissed as moot Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus.
Per Curiam Opinion
Friday, May 23, 2008
Supreme Court eyes suicide liability of hospital that discharged love-sick young man later found hanging from a tree
The disposition, delivered by Hecht, is predictible: Health care provider not liable - Jury award reversed. Two justices, however, wrote separately, pumping life back into the Jeffersonian thesis (articulated in a TEXAS LAWYER interview earlier this year) that the Court is not monolithic -- recent media attention and concern over an excessive number of anonymous per curiam opinions notwithstanding.
Providence Health Center v. Dowell, No. 05-0386 (Tex. May 23, 2008)(Nathan Hecht)
(HCLC, suicide risk management, medical treatment) (court concludes that discharge from Defendant's ER did not proximately cause young man's death by hanging.)
Twenty-one-year-old Lance Dowell was taken to the emergency room and treated for a superficial, self-inflicted cut on his left wrist. Distraught over losing his girlfriend, he had been threatening to kill himself earlier, but he had calmed down and did not want to be hospitalized. He was released on his promises that he would not commit suicide, would stay with his parents, and would go to the local Mental Health and Mental Retardation center for a follow-up assessment. His mother, a registered nurse, was with him and did not object to his release. He went to a family reunion and to a rodeo with his brother, repeatedly assuring his mother that he was okay. His mother and brother believed him, and no one else reported anything unusual in his behavior. But thirty-three hours after his release, he hanged himself. Lance’s parents now contend that his tragic death was proximately caused by the negligence of the emergency room physician and nurse in releasing him. We hold that any connection between his release and death is too attenuated for proximate cause. Accordingly, we reverse the judgment of a divided court of appeals[1] and render judgment for petitioners.
PROVIDENCE HEALTH CENTER A/K/A DAUGHTERS OF CHARITY HEALTH SERVICES OF WACO AND DEPAUL CENTER A/K/A DAUGHTERS OF CHARITY HEALTH SERVICES OF WACO v. JIMMY AND CAROLYN DOWELL, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF JONATHAN LANCE DOWELL, DECEASED; from McLennan County; 10th district (10-02-00026-CV, 167 S.W.3d 48, 03-30-05) (Dissent by Justice Tom Gray)- consolidated with - Pettit, D.O. v. Dowell (Tex. May 23, 2008)05-0788 JAMES C. PETTIT, D.O. v. JIMMY AND CAROLYN DOWELL, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF JONATHAN LANCE DOWELL, DECEASED; from McLennan County; 10th district (10-01-00420-CV, ___ S.W.3d ___, 08-10-05)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petitions for review and without hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment.
Justice Hecht delivered the opinion of the Court, in which Justice Scott Brister, Justice Paul Green, Justice Phil Johnson, and Justice Don R. Willett joined.
Justice Dale Wainwright delivered an opinion concurring in part and dissenting in part.
Justice Harriet O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson and Justice Medina joined.
Providence Health Center v. Dowell, No. 05-0386 (Tex. May 23, 2008)(Nathan Hecht)
(HCLC, suicide risk management, medical treatment) (court concludes that discharge from Defendant's ER did not proximately cause young man's death by hanging.)
Twenty-one-year-old Lance Dowell was taken to the emergency room and treated for a superficial, self-inflicted cut on his left wrist. Distraught over losing his girlfriend, he had been threatening to kill himself earlier, but he had calmed down and did not want to be hospitalized. He was released on his promises that he would not commit suicide, would stay with his parents, and would go to the local Mental Health and Mental Retardation center for a follow-up assessment. His mother, a registered nurse, was with him and did not object to his release. He went to a family reunion and to a rodeo with his brother, repeatedly assuring his mother that he was okay. His mother and brother believed him, and no one else reported anything unusual in his behavior. But thirty-three hours after his release, he hanged himself. Lance’s parents now contend that his tragic death was proximately caused by the negligence of the emergency room physician and nurse in releasing him. We hold that any connection between his release and death is too attenuated for proximate cause. Accordingly, we reverse the judgment of a divided court of appeals[1] and render judgment for petitioners.
PROVIDENCE HEALTH CENTER A/K/A DAUGHTERS OF CHARITY HEALTH SERVICES OF WACO AND DEPAUL CENTER A/K/A DAUGHTERS OF CHARITY HEALTH SERVICES OF WACO v. JIMMY AND CAROLYN DOWELL, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF JONATHAN LANCE DOWELL, DECEASED; from McLennan County; 10th district (10-02-00026-CV, 167 S.W.3d 48, 03-30-05) (Dissent by Justice Tom Gray)- consolidated with - Pettit, D.O. v. Dowell (Tex. May 23, 2008)05-0788 JAMES C. PETTIT, D.O. v. JIMMY AND CAROLYN DOWELL, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF JONATHAN LANCE DOWELL, DECEASED; from McLennan County; 10th district (10-01-00420-CV, ___ S.W.3d ___, 08-10-05)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petitions for review and without hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment.
Justice Hecht delivered the opinion of the Court, in which Justice Scott Brister, Justice Paul Green, Justice Phil Johnson, and Justice Don R. Willett joined.
Justice Dale Wainwright delivered an opinion concurring in part and dissenting in part.
Justice Harriet O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson and Justice Medina joined.
Sunday, April 20, 2008
Texas Supreme Court Tightens Screws on Malpractice Plaintiffs (and their lawyers)
JUDICIAL TORT REFORM - SUPREME COURT EXPANDS MEDICAL MALPRACTICE DEFENDANTS' ABILITY TO GO AFTER PATIENTS FOR ATTORNEYS' FEES
Texas High Court, in opinion written by Justice Dale Wainwright, who is facing the voters this year, gives doctors a second chance to pursue retaliatory sanctions claim against patients who sued them for medical malpractice. Courts of Appeals had thrown out doctors' interlocutory appeals after the plaintiffs had nonsuited their claims.
In all three cases decided by the Supreme Court last week, the trial court judges had denied the health care providers' motions for sanctions and the court of appeals had dismissed the doctors' appeal for want of jurisdiction because the plaintiffs had nonsuited their claims. Treating the doctor's sanctions demands as counterclaims for affirmative relief even though the claims could not exist and could not be brought independently of the plaintiff's suit, the supreme court holds that the doctors' sanctions motion survive nonsuit by the plaintiffs, and orders the courts of appeals to determine whether the judges in the courts below erred when they refused to make the plaintiffs pay the defendants' attorneys fees and costs as a sanction. The ruling put plaintiffs' lawyers at considerable risk of legal malpractice liability if they fail to timely obtain an expert report that satisfies the requirements of the statute as interpreted by the Supreme Court and is likely to discourage attorneys from accepting representation in medical malpractice cases.
Villafani v. Trejo, MD, No. 06-0501 (Tex. Apr. 18, 2008) (Wainwright) (HCLC, ILA, denial of sanctions, effect of non-suit on defendant's right to appeal denial of motion for sanctions)
JUAN MARIO VILLAFANI, M.D. v. ADELA TREJO; from Cameron County; 13th district (13-04-00449-CV, ___ S.W.3d ___, 10-06-05) The Court reverses the court of appeals' judgment and remands the case to that court. Justice Dale Wainwright delivered the opinion of the Court.
THE COMPANION CASES (decided in per curiam opinions)
Barrera, MD v. Rico, No. 05-0928 (Tex. Apr. 18, 2008)(per curiam) (appealability of order denying doctor's motion for sanctions after plaintiff nonsuited medical malpractice suit and court dismissed without prejudice)
RICARDO BARRERA, M.D. v. ISELA RICO AND MANUEL RICO, INDIVIDUALLY AND AS PARENTS AND NEXT FRIENDS OF GLORIA RICO, A MINOR; from Hidalgo County; 13th district (13-04-00480-CV, ___ S.W.3d ___, 07-21-05) Respondent's motion to supplement response brief on the merits granted. Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court.
Regent Care Center of San Antonio II, LP v. Hargrave, No. 06-0717 (Tex. Apr. 18, 2008)(per curiam) (HCLC, medical malpractice, effect on nonsuit on health care provider's pending appeal of order denying sanctions)
REGENT CARE CENTER OF SAN ANTONIO II, LIMITED PARTNERSHIP D/B/A REGENT CARE CENTER OF OAKWELL FARMS AND RCCSA II, INC. v. BARBARA HARGRAVE, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF DOROTHY MONTGOMERY, AND VERNON LLOYD PIERCE, INDIVIDUALLY; from Bexar County; 4th district (04-05-00274-CV, 202 S.W.3d 807, 06-28-06) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court.
Texas High Court, in opinion written by Justice Dale Wainwright, who is facing the voters this year, gives doctors a second chance to pursue retaliatory sanctions claim against patients who sued them for medical malpractice. Courts of Appeals had thrown out doctors' interlocutory appeals after the plaintiffs had nonsuited their claims.
In all three cases decided by the Supreme Court last week, the trial court judges had denied the health care providers' motions for sanctions and the court of appeals had dismissed the doctors' appeal for want of jurisdiction because the plaintiffs had nonsuited their claims. Treating the doctor's sanctions demands as counterclaims for affirmative relief even though the claims could not exist and could not be brought independently of the plaintiff's suit, the supreme court holds that the doctors' sanctions motion survive nonsuit by the plaintiffs, and orders the courts of appeals to determine whether the judges in the courts below erred when they refused to make the plaintiffs pay the defendants' attorneys fees and costs as a sanction. The ruling put plaintiffs' lawyers at considerable risk of legal malpractice liability if they fail to timely obtain an expert report that satisfies the requirements of the statute as interpreted by the Supreme Court and is likely to discourage attorneys from accepting representation in medical malpractice cases.
Villafani v. Trejo, MD, No. 06-0501 (Tex. Apr. 18, 2008) (Wainwright) (HCLC, ILA, denial of sanctions, effect of non-suit on defendant's right to appeal denial of motion for sanctions)
JUAN MARIO VILLAFANI, M.D. v. ADELA TREJO; from Cameron County; 13th district (13-04-00449-CV, ___ S.W.3d ___, 10-06-05) The Court reverses the court of appeals' judgment and remands the case to that court. Justice Dale Wainwright delivered the opinion of the Court.
THE COMPANION CASES (decided in per curiam opinions)
Barrera, MD v. Rico, No. 05-0928 (Tex. Apr. 18, 2008)(per curiam) (appealability of order denying doctor's motion for sanctions after plaintiff nonsuited medical malpractice suit and court dismissed without prejudice)
RICARDO BARRERA, M.D. v. ISELA RICO AND MANUEL RICO, INDIVIDUALLY AND AS PARENTS AND NEXT FRIENDS OF GLORIA RICO, A MINOR; from Hidalgo County; 13th district (13-04-00480-CV, ___ S.W.3d ___, 07-21-05) Respondent's motion to supplement response brief on the merits granted. Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court.
Regent Care Center of San Antonio II, LP v. Hargrave, No. 06-0717 (Tex. Apr. 18, 2008)(per curiam) (HCLC, medical malpractice, effect on nonsuit on health care provider's pending appeal of order denying sanctions)
REGENT CARE CENTER OF SAN ANTONIO II, LIMITED PARTNERSHIP D/B/A REGENT CARE CENTER OF OAKWELL FARMS AND RCCSA II, INC. v. BARBARA HARGRAVE, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF DOROTHY MONTGOMERY, AND VERNON LLOYD PIERCE, INDIVIDUALLY; from Bexar County; 4th district (04-05-00274-CV, 202 S.W.3d 807, 06-28-06) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court.
Sunday, April 13, 2008
2008-04-11 - Is Interlocutory Appeal Available to Doctors in Medical Malpractice Cases?
... and if so, when and under what circumstances? Texas Supreme Court sides with majority of courts of appeals in resolving issue of interlocutory jurisdiction, i. e. question of whether immediate appeal may be brought by doctor claiming that the Plaintiff's expert report required by the Legislature as part of med-mal tort reform is inadequate.
Lewis, MD v. Funderburk, No.. 06-0518 (Tex. Apr. 11, 2008) (Brister)
(tort, reform, HCLC, medical malpractice, interlocutory appeal)
RORY LEWIS, M.D. v. DEWAYNE FUNDERBURK, AS NEXT FRIEND OF WHITNEY FUNDERBURK; from Limestone County; 10th district (10-05-00197-CV, 191 S.W.3d 756, 04-05-06)
The Court reverses the court of appeals' judgment and remands the case to that court.
Justice Brister delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice Medina, Justice Green, Justice Johnson, and Justice Willett joined.
Justice Harriet O'Neill delivered a concurring opinion.
Justice Don Willett delivered a concurring opinion.
In an effort to stem frivolous suits against health care providers, the Legislature has made a number of changes in the rules of civil litigation. Among them has been a requirement since 1995 for early expert reports,[1] and a provision since 2003 for interlocutory review of those reports.[2] Since adoption of the latter provision, 12 of the 14 courts of appeals in Texas have routinely conducted interlocutory review of allegedly inadequate reports.[3] But two courts have not — the Second and (in this case) the Tenth courts of appeals have held they have no jurisdiction of such appeals.[4]
We have jurisdiction to determine whether a court of appeals has properly declined jurisdiction.[5] Because we agree with the great majority that interlocutory review is proper, we reverse.
Lewis, MD v. Funderburk, No.. 06-0518 (Tex. Apr. 11, 2008) (Brister)
(tort, reform, HCLC, medical malpractice, interlocutory appeal)
RORY LEWIS, M.D. v. DEWAYNE FUNDERBURK, AS NEXT FRIEND OF WHITNEY FUNDERBURK; from Limestone County; 10th district (10-05-00197-CV, 191 S.W.3d 756, 04-05-06)
The Court reverses the court of appeals' judgment and remands the case to that court.
Justice Brister delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice Medina, Justice Green, Justice Johnson, and Justice Willett joined.
Justice Harriet O'Neill delivered a concurring opinion.
Justice Don Willett delivered a concurring opinion.
In an effort to stem frivolous suits against health care providers, the Legislature has made a number of changes in the rules of civil litigation. Among them has been a requirement since 1995 for early expert reports,[1] and a provision since 2003 for interlocutory review of those reports.[2] Since adoption of the latter provision, 12 of the 14 courts of appeals in Texas have routinely conducted interlocutory review of allegedly inadequate reports.[3] But two courts have not — the Second and (in this case) the Tenth courts of appeals have held they have no jurisdiction of such appeals.[4]
We have jurisdiction to determine whether a court of appeals has properly declined jurisdiction.[5] Because we agree with the great majority that interlocutory review is proper, we reverse.
Sunday, March 30, 2008
Voir Dire Yielded Clear and Convincing Confusion
Texas Supreme Court sees no reason to overturn jury verdict favorable to defendant in medical malpractice suit based on juror confusion over proper standard of proof.
Murff, MD v. Pass, No. 07-0294 (Tex. Mar. 28, 2008) (jury selection, juror confusion, disqualification, strike for cause)
[...] Here, although Ruth stated that he would hold Pass to a clear and convincing standard of proof, it is apparent Ruth was confused as to the definition of “preponderance of the evidence,” as were many of the other panel members. This confusion is not only demonstrated by the venirepersons’ statements but was also noted by the trial judge who witnessed the exchange. Stating “the jury sounds like they’re getting confused,” the trial judge stopped the line of questioning and clarified the applicable standard of proof. Nothing in the examination indicates that Ruth harbored bias or prejudice in favor of or against a party or claim, or that he would be unable or unwilling to follow the court’s instructions once the definitions were properly stated. In response to a general question, Ruth even indicated his agreement that he would follow the instructions given by the trial court.Ruth’s responses exhibit the type of “confusion, misunderstanding, [and] ignorance of the law” we discussed in Cortez. Id. at 92. There, we emphasized that the trial judge was in the best position to determine whether the allegedly impartial statement was the result of bias or merely of confusion. Id. at 92–93. In this case, the trial judge observed the exchange and considered it confusing, a characterization the record supports.Citing Cortez, Pass contends rehabilitation is necessary once a member of the venire makes a statement indicating an inability to follow the court’s instructions and argues that Ruth was disqualified because he was never rehabilitated. However, in Cortez we did not require rehabilitation in order to prevent disqualification; rather, we held that rehabilitation is permissible to clarify whether a venireperson’s response results from confusion or misunderstanding, and that the extent and use of rehabilitation is within the trial court’s discretion. Id. at 92. Here, the trial court was satisfied that Ruth was sufficiently impartial without having to conduct additional individual questioning, and review of the entire examination fails to indicate that the trial court’s assessment constituted an abuse of discretion.The court of appeals also concluded that venirepersons 10, 29, and 31 were disqualified based on their affirmation of Ruth’s statement regarding the standard of proof. See ___ S.W.3d at ___ . However, as the trial court did not abuse its discretion in refusing to disqualify Ruth, it cannot have abused its discretion in refusing to disqualify venirepersons 10, 29, and 31, who merely agreed with Ruth’s statement in response to general questioning.* * *We reverse the court of appeals’ judgment and render judgment in favor of Murff.
W. GENE MURFF, M.D. AND MURFF-WANG-MOORE ASSOCIATES, P.A. v. WANDA KAYE PASS, AS NEXT FRIEND OF LESLIE LEANN PASS, A MINOR; from McLennan County; 10th district (10-06-00162-CV, ___ SW3d ___, 02-28-07)Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment. Per Curiam Opinion
Opiniong below: Pass v. Murff, No. 10-06-00162-CV (Tex.App. - Waco, Feb. 28, 2007, pet. filed)(Mem. op. by Bill Vance)
Thursday, October 25, 2007
Tort Reform: Chief Justice Jefferson rules against patient who ended up in coma as a result of botched surgery
Yancy v. United Surgical Partners International, Inc. No. 05-0925 (Tex. Oct. 19, 2007)(Jefferson) (health care liability claim, statute of limitation, state constitutional open courts challenge denied)
Although the Texas Supreme Court grants review in few cases, and carefully picks the one it decides on the merits, Justice Jefferson here avers that "we must decide" whether the two-year statute of limitations found in a statute that has since be amended - former article 4590i, section 10.01 of the Texas Revised Civil Statutes[1] - violates the Texas Constitution’s open courts guarantee as applied to an incapacitated plaintiff whose guardian timely filed suit against some defendants but not against others.
The Court concludes that the plaintiff presented competent summary judgment evidence of her continuous mental incapacity but nonetheless holds that claims against some defendants are time-barred and that the open courts guarantee has not been violated.
COMMENT: Thanks to court-enforced tort reform standards, personal injury and medical malpractice lawyers can't do right. If Plaintiffs and their lawyers name all possible defendants before all the facts are in as a result of discovery, they risk being sanctioned, even if they are willing to nonsuit the ones later shown to be free of blame. Low v. Henry (Tex. April 20, 2007)
If they wait, and expressly reserve the right to add additional defendants as a better understanding is developed as to why the patient ended up in a vegetative state, and who is responsible, they take nothing on a finding that their claim is time-barred, and that the negligence claims asserted against the additional defendants by way of amended pleadings don't relate back to the filing date of suit against the original defendant(s).
Full style for Tex. Sup. Ct. Appeal No. 05-0925: EULA YANCY, AS THE GUARDIAN OF THE PERSON AND THE ESTATE OF CARLETHA YATES, AN INCAPACITATED ADULT v. UNITED SURGICAL PARTNERS INTERNATIONAL, INC., VALLEY VIEW SURGICAL CENTER, INC., AND JUDITH SMITH, R.N.; from Dallas County; 5th district (05‑04‑00791‑CV, 170 SW3d 185, 07‑12‑05)
The Court affirms the court of appeals' judgment.
Sunday, June 24, 2007
Schaub, M.D. v. Sanchez (Tex. June 22, 2007)
Texas Supreme Court Renders Judgment for Defendants in Medical Malpractice Suit
Lowry Schaub, MD v. Sanchez No. 06-0375 (Tex. Jun 22, 2007)(per curiam)(HCLC, patient's informed consent)
Texas Supreme Court Cause No.: 06‑0375
Full style of Case: Lowry Schaub, M.D. and Kevin Crawford, M.D. v. Janie Sanchez and Kenneth Adams, Spouse
Opinion below: Sanchez v. Schaub, 184 S.W.3d 901 (Tex.App. - Amarillo, Feb. 2, 2006)
Appeals Court: Seventh Court of Appeals, Opinion by Chief Justice Brian Quinn
Appellate Court Cause Number and link to docket: No. 07-04-00057-CV
Trial Court: 237th District Court
Trial Court Judge: Honorable Sam Abel Medina
Supreme Court's Disposition: Without hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment for the Defendants.
Supreme Court opinion type: Per curiam (Justice Phil Johnson not sitting)
Also see eBriefs in the Texas Supreme Court in Schaub v. Sanchez No. 06-0275 (Tex. Jun 22, 2007)
PER CURIAM OPINION
In this health care liability case, we render a take-nothing judgment because the only theories under which the patient could recover were dismissed by agreed order in the trial court.
Janie Sanchez sued Doctors Lowry Schaub and Kevin Crawford for failing to obtain her informed consent to perform a stellate ganglion block—a spinal injection that anesthetizes a collection of nerves in the patient’s neck. By agreed order, the trial court dismissed with prejudice Sanchez’s other malpractice-related claims, leaving only her claim that the doctors “failed to obtain informed consent with regard to the stellate ganglion block.” The trial court granted summary judgment in favor of the doctors on grounds that Sanchez had signed forms consenting to the procedure.
The court of appeals reversed, holding that the forms, which did not give specific consent to a stellate ganglion block, incorporated recognized common-law duties regarding informed consent. 184 S.W.3d 901, 903-04. It reasoned that performing the procedure to which Sanchez had verbally objected might have deviated from accepted medical practices, thus raising a fact issue regarding Sanchez’s consent. The court of appeals concluded that the trial court should have proceeded to trial to hear testimony on accepted medical practices in these circumstances. We reverse the court of appeals’ judgment because the summary judgment record conclusively negates Sanchez’s informed consent claim.
Doctor Crawford operated on Sanchez’s broken wrist in December 1999. Afterwards, Sanchez experienced pain, numbness, and tingling in the hand. Crawford recommended a stellate ganglion block. Two blocks were performed, but they were ineffective. Sanchez told Crawford that she did not want another block performed. Crawford recommended a wrist manipulation procedure as an alternative to another block. Before the wrist manipulation, Sanchez signed two consent forms, one at Crawford’s office a few days before surgery, and the other on the day of surgery. Doctor Schaub, an anesthesiologist, assisted with the surgery, which was performed under general anesthesia. The doctors testified that during the surgery, they saw signs of an acute flare-up of Sanchez’s reflex sympathetic dystrophy, a condition of stiffness and swelling of the hand that can cause severe post-operative pain, inhibited movement, and reduced benefits from surgery. The doctors determined that another block would mitigate these symptoms, so they performed a third block. Sanchez presented some evidence that performing the block while she was unconscious deviated from the accepted medical standard of care. As a result of this third block, Sanchez developed an infection, resulting in spinal surgery.
Sanchez’s informed consent claim is governed by section 6.02 of former article 4590i, now codified as section 74.101 of the Civil Practice and Remedies Code. Former section 6.02 provides:
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.[1]
Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, 2048 (as amended) (current version at Tex. Civ. Prac. & Rem. Code § 74.101). Under this statute, Sanchez can prevail on her informed consent claim only if she shows that the doctors negligently failed to disclose the procedure’s risks or hazards.
Sanchez argues that because she opted for wrist manipulation rather than another block, and had earlier informed Dr. Crawford that she did not want any more block injections, she refused consent to the block. Thus, she argues, her lack of consent supports a claim for lack of informed consent. But under section 6.02, lack of informed consent is a particular subspecies of negligence based on a failure to disclose the risks or hazards of a procedure. See Barclay v. Campbell, 704 S.W.2d 8, 9–10 (Tex. 1986) (reversing directed verdict in favor of physician where the plaintiff presented evidence of a lack of informed consent by showing that the complained-of condition was a risk inherent to the procedure performed and that the risk could influence a reasonable person’s decision to consent to the procedure).
Sanchez, however, does not complain that she was unaware of the risks or hazards of the block. To the contrary, she was fully aware of the risks, having twice undergone the procedure. As she stated in her summary judgment affidavit, “I was informed of the danger of the treatment.” Sanchez verbally objected to a third block, but an action for total lack of consent sounds in battery or negligence—claims that Sanchez agreed to dismiss—not informed consent under section 6.02. See Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005) (stating that failure to obtain a patient’s consent to treatment can give rise to a cause of action for battery); Binur v. Jacobo, 135 S.W.3d 646, 655–56 (Tex. 2004) (explaining that misdiagnosis and mistreatment might constitute negligence, but do not give rise to a claim for lack of informed consent); Miller v. HCA, Inc., 118 S.W.3d 758, 767 (Tex. 2003) (“[T]he general rule in Texas is that a physician who provides treatment without consent commits a battery.”). Moreover, the court of appeals’ suggestion that a doctor’s deviation from accepted medical standards falls outside the scope of the patient’s consent would mean that every negligence claim is likewise an informed consent claim. See 184 S.W.3d 901, 904. This result is inconsistent with the statutory definition of informed consent.
Finally, there is the fact that Sanchez, subsequent to her earlier verbal objections to a third block, consented in writing to “different procedures than those planned” and “any anesthesia deemed advisable” by Dr. Schaub, and acknowledged that “the anesthesia may have to be changed possibly without explanation to me[.]” Even if we agree with Sanchez that her earlier objection was not superseded by these two later-signed consent forms, performing a procedure without her consent—again, a claim Sanchez agreed to drop—is not the same as performing it without her informed consent, defined narrowly as “failing to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent.” Given the statute’s plain language, the summary judgment evidence cannot support a claim that the doctors failed to obtain Sanchez’s informed consent.
Accordingly, we reverse the court of appeals’ judgment and, without hearing oral argument, render a judgment that Sanchez take nothing. See Tex. R. App. P. 59.1; 60.2(c).
OPINION RELEASED: June 22, 2007
[1] Section 74.101 of the Civil Practice and Remedies Code is identical.
Search terms: HCLC Texas cases, Texas medical malpractice cases
Questions: What is informed consent; what constitutes patient's informed consent?
Lowry Schaub, MD v. Sanchez No. 06-0375 (Tex. Jun 22, 2007)(per curiam)(HCLC, patient's informed consent)
Texas Supreme Court Cause No.: 06‑0375
Full style of Case: Lowry Schaub, M.D. and Kevin Crawford, M.D. v. Janie Sanchez and Kenneth Adams, Spouse
Opinion below: Sanchez v. Schaub, 184 S.W.3d 901 (Tex.App. - Amarillo, Feb. 2, 2006)
Appeals Court: Seventh Court of Appeals, Opinion by Chief Justice Brian Quinn
Appellate Court Cause Number and link to docket: No. 07-04-00057-CV
Trial Court: 237th District Court
Trial Court Judge: Honorable Sam Abel Medina
Supreme Court's Disposition: Without hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment for the Defendants.
Supreme Court opinion type: Per curiam (Justice Phil Johnson not sitting)
Also see eBriefs in the Texas Supreme Court in Schaub v. Sanchez No. 06-0275 (Tex. Jun 22, 2007)
PER CURIAM OPINION
In this health care liability case, we render a take-nothing judgment because the only theories under which the patient could recover were dismissed by agreed order in the trial court.
Janie Sanchez sued Doctors Lowry Schaub and Kevin Crawford for failing to obtain her informed consent to perform a stellate ganglion block—a spinal injection that anesthetizes a collection of nerves in the patient’s neck. By agreed order, the trial court dismissed with prejudice Sanchez’s other malpractice-related claims, leaving only her claim that the doctors “failed to obtain informed consent with regard to the stellate ganglion block.” The trial court granted summary judgment in favor of the doctors on grounds that Sanchez had signed forms consenting to the procedure.
The court of appeals reversed, holding that the forms, which did not give specific consent to a stellate ganglion block, incorporated recognized common-law duties regarding informed consent. 184 S.W.3d 901, 903-04. It reasoned that performing the procedure to which Sanchez had verbally objected might have deviated from accepted medical practices, thus raising a fact issue regarding Sanchez’s consent. The court of appeals concluded that the trial court should have proceeded to trial to hear testimony on accepted medical practices in these circumstances. We reverse the court of appeals’ judgment because the summary judgment record conclusively negates Sanchez’s informed consent claim.
Doctor Crawford operated on Sanchez’s broken wrist in December 1999. Afterwards, Sanchez experienced pain, numbness, and tingling in the hand. Crawford recommended a stellate ganglion block. Two blocks were performed, but they were ineffective. Sanchez told Crawford that she did not want another block performed. Crawford recommended a wrist manipulation procedure as an alternative to another block. Before the wrist manipulation, Sanchez signed two consent forms, one at Crawford’s office a few days before surgery, and the other on the day of surgery. Doctor Schaub, an anesthesiologist, assisted with the surgery, which was performed under general anesthesia. The doctors testified that during the surgery, they saw signs of an acute flare-up of Sanchez’s reflex sympathetic dystrophy, a condition of stiffness and swelling of the hand that can cause severe post-operative pain, inhibited movement, and reduced benefits from surgery. The doctors determined that another block would mitigate these symptoms, so they performed a third block. Sanchez presented some evidence that performing the block while she was unconscious deviated from the accepted medical standard of care. As a result of this third block, Sanchez developed an infection, resulting in spinal surgery.
Sanchez’s informed consent claim is governed by section 6.02 of former article 4590i, now codified as section 74.101 of the Civil Practice and Remedies Code. Former section 6.02 provides:
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.[1]
Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, 2048 (as amended) (current version at Tex. Civ. Prac. & Rem. Code § 74.101). Under this statute, Sanchez can prevail on her informed consent claim only if she shows that the doctors negligently failed to disclose the procedure’s risks or hazards.
Sanchez argues that because she opted for wrist manipulation rather than another block, and had earlier informed Dr. Crawford that she did not want any more block injections, she refused consent to the block. Thus, she argues, her lack of consent supports a claim for lack of informed consent. But under section 6.02, lack of informed consent is a particular subspecies of negligence based on a failure to disclose the risks or hazards of a procedure. See Barclay v. Campbell, 704 S.W.2d 8, 9–10 (Tex. 1986) (reversing directed verdict in favor of physician where the plaintiff presented evidence of a lack of informed consent by showing that the complained-of condition was a risk inherent to the procedure performed and that the risk could influence a reasonable person’s decision to consent to the procedure).
Sanchez, however, does not complain that she was unaware of the risks or hazards of the block. To the contrary, she was fully aware of the risks, having twice undergone the procedure. As she stated in her summary judgment affidavit, “I was informed of the danger of the treatment.” Sanchez verbally objected to a third block, but an action for total lack of consent sounds in battery or negligence—claims that Sanchez agreed to dismiss—not informed consent under section 6.02. See Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005) (stating that failure to obtain a patient’s consent to treatment can give rise to a cause of action for battery); Binur v. Jacobo, 135 S.W.3d 646, 655–56 (Tex. 2004) (explaining that misdiagnosis and mistreatment might constitute negligence, but do not give rise to a claim for lack of informed consent); Miller v. HCA, Inc., 118 S.W.3d 758, 767 (Tex. 2003) (“[T]he general rule in Texas is that a physician who provides treatment without consent commits a battery.”). Moreover, the court of appeals’ suggestion that a doctor’s deviation from accepted medical standards falls outside the scope of the patient’s consent would mean that every negligence claim is likewise an informed consent claim. See 184 S.W.3d 901, 904. This result is inconsistent with the statutory definition of informed consent.
Finally, there is the fact that Sanchez, subsequent to her earlier verbal objections to a third block, consented in writing to “different procedures than those planned” and “any anesthesia deemed advisable” by Dr. Schaub, and acknowledged that “the anesthesia may have to be changed possibly without explanation to me[.]” Even if we agree with Sanchez that her earlier objection was not superseded by these two later-signed consent forms, performing a procedure without her consent—again, a claim Sanchez agreed to drop—is not the same as performing it without her informed consent, defined narrowly as “failing to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent.” Given the statute’s plain language, the summary judgment evidence cannot support a claim that the doctors failed to obtain Sanchez’s informed consent.
Accordingly, we reverse the court of appeals’ judgment and, without hearing oral argument, render a judgment that Sanchez take nothing. See Tex. R. App. P. 59.1; 60.2(c).
OPINION RELEASED: June 22, 2007
[1] Section 74.101 of the Civil Practice and Remedies Code is identical.
Search terms: HCLC Texas cases, Texas medical malpractice cases
Questions: What is informed consent; what constitutes patient's informed consent?
Friday, June 22, 2007
June 22, 2007 - Texas Supreme Court Hands Down One Per Curiam Opinion
The Supreme Court of Texas released a single opinion today, in which it ruled for the defendant doctors in a health care liability suit
Schaub, M.D. et al v. Sanchez, No. 06‑0375 (Tex. Jun. 22, 2007)(per curiam)(medical malpractice)
Full style: Lowry Schaub, M.D. and Kevin Crawford, M.D. v. Janie Sanchez and Kenneth Adams, Spouse
Appellate court below: Seventh Court of Appeals (Amarillo, Texas)
Appellate Cause No. 7‑04‑00057‑CV, ___ S.W.3d ___, Feb. 2, 2006
Disposition: Without hearing oral argument, the Supreme Court reverses the Seventh Court of Appeals' judgment and renders judgment for the defendant doctor.
Per Curiam Opinion (without Justice Johnson's participation)
Find terms: Texas health care liability cases, decisions, opinions, HCLC, medical malpractice cases in Texas, informed consent of patient, failure to obtain informed consent, validity of consent, written consent, oral objection
Schaub, M.D. et al v. Sanchez, No. 06‑0375 (Tex. Jun. 22, 2007)(per curiam)(medical malpractice)
Full style: Lowry Schaub, M.D. and Kevin Crawford, M.D. v. Janie Sanchez and Kenneth Adams, Spouse
Appellate court below: Seventh Court of Appeals (Amarillo, Texas)
Appellate Cause No. 7‑04‑00057‑CV, ___ S.W.3d ___, Feb. 2, 2006
Disposition: Without hearing oral argument, the Supreme Court reverses the Seventh Court of Appeals' judgment and renders judgment for the defendant doctor.
Per Curiam Opinion (without Justice Johnson's participation)
Find terms: Texas health care liability cases, decisions, opinions, HCLC, medical malpractice cases in Texas, informed consent of patient, failure to obtain informed consent, validity of consent, written consent, oral objection
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