Barclay v. Campbell
| Decision Date | 08 January 1986 |
| Docket Number | No. C-3854,C-3854 |
| Citation | 704 S.W.2d 8 |
| Parties | Milton BARCLAY, Petitioner, v. W. Lawrence CAMPBELL, M.D., Respondent. |
| Court | Texas Supreme Court |
Law offices of Windle Turley, Paula Fisette Sweeney, Dallas, for petitioner.
Thompson & Knight, David S. Kidder, and Maureen Murry, Dallas, for respondent.
This is a medical malpractice case. Milton Barclay sued Dr. W. Lawrence Campbell, alleging that the doctor negligently prescribed certain drugs for Barclay and negligently failed to disclose to Barclay certain risks associated with the drugs. The trial court granted a partial directed verdict in favor of Dr. Campbell on informed consent and submitted the remaining negligence issues to the jury. The jury did not find Dr. Campbell negligent in his treatment of Barclay and the trial court rendered a take-nothing judgment against Barclay. The court of appeals affirmed the trial court judgment, holding that the trial court did not err in directing a verdict for Dr. Campbell on the issue of informed consent. 683 S.W.2d 498. We disagree. The issue of informed consent should have been submitted to the jury. Therefore, we reverse the judgment of the court of appeals and remand the cause to the trial court.
Barclay was referred to Dr. Campbell in January of 1978 by his employer's company physician. Dr. Campbell treated Barclay for mental illness and during the course of treatment prescribed certain neuroleptic drugs for Barclay. In a small percentage of cases, these drugs produce a condition known as tardive dyskinesia. This condition is marked by involuntary muscle movements. The evidence is undisputed that Dr. Campbell did not warn Barclay of the risks associated with the neuroleptic drugs, and Barclay now suffers from tardive dyskinesia.
This cause is governed by the Medical Liability and Insurance Improvement Act, TEX.REV.CIV.STAT.ANN. art. 4590i (Vernon Supp.1985), enacted in 1977. The Act changed the common-law locality rule concerning the physician's duty of disclosure, based on the "reasonable medical practitioner" standard, declared in Wilson v. Scott, 412 S.W.2d 299, 302 (Tex.1967). The Texas Medical Disclosure Panel was established by the Act to determine which risks related to medical care should be disclosed. Section 6.07(a) of the Act creates a rebuttable presumption of negligence when the physician has failed to disclose a risk found on the list. Section 6.07(b) provides that if the panel has made no determination concerning the disclosure of risks attendant to a particular medical procedure in question, the physician is under the "duty otherwise imposed by law." TEX.REV.CIV.STAT.ANN. art. 4590i, § 6.07(a) and (b) (Vernon Supp.1985). In our case, the panel has not made a determination of risk disclosure associated with neuroleptic drug ingestion. Consequently, this cause falls under section 6.07(b) of the Act.
In Peterson v. Shields, 652 S.W.2d 929, 931 (Tex.1983), we held that the "duty otherwise imposed by law" meant the duty imposed by section 6.02 of the Act, that is, "to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent." Section 6.02 replaces the common-law locality rule with a "reasonable person" rule. Id. at 931. Thus, the focus shifts from the "reasonable medical practitioner" standard to the "reasonable person" standard which asks what risks are material to making the decision to give or withhold consent to a particular medical procedure.
If no presumption has been established by the Act, the plaintiff must prove by expert testimony that the medical condition complained of is a risk inherent in the medical procedure performed. Id. The expert should also "testify to all other facts concerning the risk which show that knowledge of the risk could influence a reasonable person in making a decision to consent to the procedure." Id.
According to Peterson, the plaintiff must meet two requirements to raise a fact issue. First, the plaintiff must introduce evidence to show the risk is inherent to the medical procedure undertaken. Second, the plaintiff must introduce evidence to show that the risk is material in the sense that it could influence a reasonable person's decision to consent to the procedure. If the plaintiff meets both of these requirements, a fact issue is raised so that the plaintiff is entitled to the submission of two issues.
The first issue asks whether the condition complained of is a risk inherent to the medical procedure performed. If the jury answers this issue affirmatively, the jury considers the second issue. The second issue asks could this inherent risk, if any, influence a reasonable person in making a decision to consent to the procedure.
In our case, there was expert testimony introduced at trial that tardive dyskinesia is an inherent risk associated with neuroleptic drugs. Inherent means that the risk is one which exists in and is inseparable from the drug itself. Tardive dyskinesia arises from the use of the...
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