A Texas appeals panel has upheld a take-nothing jury verdict against a North Texas woman who lost her malpractice case against a local plastic surgeon, finding that the jury instructions were proper and that the woman cannot get another trial. The physician was represented at the original trial by the firm’s Bill Chamblee.
The plaintiff’s appeal was based on her contention that the judge erred in refusing to submit a jury question about whether the surgeon obtained her informed consent to perform a procedure to remove excess skin.
“The evidence on which (the plaintiff) relies, as well as the argument she presents, raises the issue of medical battery rather than an informed consent claim,” the opinion stated in rejecting her appellate argument. An informed consent claim is a particular subspecies of negligence based on a failure to disclose the risks or hazards of a procedure, according to the three-judge panel.
Texas law provides that in a suit based on a physician’s alleged failure to disclose the risks and hazards of a surgical procedure, the only theory on which recovery may be obtained is that of negligence in failing to disclose risks or hazards that could have influenced a reasonable person in deciding whether or not to agree to the procedure, according to the opinion.
Medical battery, however, is defined under state law as performing a medical act or treatment on a patient without consent, the opinion states.
“Performing a procedure without a patient’s consent is not the same as performing it without her informed consent,” the opinion said.
At the trial the jury charge contained two questions. Question 1 asked, “Did the negligence, if any, of (the defendant), proximately cause the injury in question?” “Negligence” was defined as “failure to use ordinary care, that is, failing to do that which a plastic surgeon of ordinary prudence would have done under the same or similar circumstances or doing that which [a] plastic surgeon of ordinary prudence would not have done under the same or similar circumstances.”
The jury answered no and did not reach Question 2 about damages.
Attorney: William H. Chamblee