Binur v. Jacobo
| Decision Date | 07 May 2004 |
| Docket Number | No. 02-0405.,02-0405. |
| Citation | 135 S.W.3d 646 |
| Parties | Nir S. BINUR, M.D., Petitioner, v. Donna JACOBO, Respondent. |
| Court | Texas Supreme Court |
Diana L. Faust, R. Brent Cooper, Devon J. Singh, Ashley Elizabeth Frizzell, Cooper & Scully, P.C., Dallas, Greg C. Wilkins, Gilbert I. "Buddy" Low, J.B. Whittenburg, Orgain Bell & Tucker, L.L.P., Beaumont, for Petitioner.
Paul F. Waldner, Bryan Marshall, Waldner & Associates, Houston, for Respondent.
The issues in this medical malpractice suit have narrowed as the case has proceeded. Although the plaintiff Donna Jacobo originally asserted a number of counts of negligence against the defendant Nir Binur, a physician, Jacobo has since confined her complaints to her contention that Binur failed to obtain her informed consent to the surgical removal of both her breasts. She contends that Binur told her that she would definitely develop breast cancer and that this was the reason she consented to a prophylactic bilateral mastectomy.
After a trial in which a jury was unable to agree on a verdict and a mistrial was declared, the trial court granted summary judgment in Binur's favor. Jacobo appealed, and a divided court of appeals reversed and remanded, concluding that fact issues exist.1 We hold that although Jacobo might have pursued a claim against Binur for negligence in reaching his prognosis, an erroneous prognosis that is the basis for recommending surgery cannot be the basis of a cause of action for lack of informed consent. Because informed consent is the only claim Jacobo has pursued, we reverse the court of appeals' judgment and render judgment for Binur.
The summary judgment record includes affidavits, excerpts from testimony adduced at trial, and documentary evidence. The record reflects that fourteen years before Donna Jacobo underwent the mastectomy at issue in this case, she had a lump removed from her breast that proved to be benign, and that she had another benign lump removed seven years later. In the summer before her mastectomy, her mother died of breast cancer. Three months after her mother's death, Donna Jacobo detected another lump in her breast. She consulted her primary care physician, who examined her and ordered a mammogram. Jacobo's breasts had fibrocystic tissue, which made it more difficult to interpret the mammogram. Jacobo's physician referred her to a general surgeon, Dr. John Schmidt. Schmidt reviewed Jacobo's mammogram, and she told him about her prior lumpectomies, her mother's death, and the fact that her maternal grandmother had survived breast cancer.
After this initial consultation, Dr. Schmidt reported in a note to Jacobo's primary care physician that Schmidt's diagnosis was: "(1) Probable fibrocystic disease (2) Very [underscored three times] strong risk of developing breast ca[ncer]." Schmidt's recommended treatment was: Donna Jacobo's affidavit states that at her initial consultation with Dr. Schmidt, he recommended a bilateral mastectomy, but she "decided against the proposed surgical removal of my breasts." She explained, "I felt that this was a rather extreme mode of treatment for preventing a disease that I did not have—especially in light of the fact that my previous lumps had been benign."
Dr. Schmidt referred Jacobo to Binur, a plastic surgeon. Binur, like Schmidt, recommended that Jacobo undergo a mastectomy. Jacobo's affidavit states, 2
Binur disputes that he told Jacobo that it was certain she would develop breast cancer, but in our review, we accept all that Jacobo said as true.3
After meeting with Binur, Jacobo returned to see Dr. Schmidt and told him that she had decided to proceed with the surgery. Before surgery, Jacobo signed a written consent form that identified both Schmidt and Binur in the blank for "PHSICIAN'S/SURGEON'S NAME." She consented to a "Bilateral simple mastectomy, tissue expanders." All parties and experts agree that two distinct procedures were performed on Jacobo during this surgery. The first was the bilateral mastectomy, and the second was partial breast reconstruction with the insertion of tissue expanders. It is also undisputed that Dr. Schmidt performed the mastectomy with the assistance of Binur, although the extent of Binur's participation and the legal duty he owed to Jacobo as a result is disputed. Binur performed the reconstruction procedure, which is no longer at issue in this case.
Binur continued to treat Jacobo after this initial surgery, and she alleged that as a result, she experienced pain, deformity, and other ill-effects. We will not detail her further treatment by Binur since it is no longer part of Jacobo's claim. We note only that Binur performed three more surgical procedures and that Jacobo then consulted other surgeons and had three additional surgical procedures to remedy Binur's alleged negligence in reconstructing her breasts.
Jacobo sued Schmidt and Binur. The trial court granted summary judgment in Schmidt's favor and severed the suit against him. The remaining claims against Binur proceeded to a jury trial. Both Binur and Schmidt, as well as experts for Jacobo and Binur, testified. Before the case was submitted to the jury, Jacobo waived her claims against Binur pertaining to his treatment of her after the mastectomy and her claim that Binur was negligent in performing the reconstruction procedure when the mastectomy was performed. The only claims she pursued were those related to Binur's role in the mastectomy. As noted above, at the conclusion of the evidence, the jury was unable to reach a verdict, and the trial court declared a mistrial.
Binur then moved for summary judgment under Texas Rules of Civil Procedure 166a(b) and 166a(i). Binur contended that as a matter of law he was not negligent and that he owed no duty to Jacobo to obtain her informed consent for the mastectomy. He also contended that if he owed a duty, informed consent was properly obtained. Finally, he contended that any failure to obtain informed consent was not a proximate cause of injury or damages to Jacobo. The trial court granted this motion, reciting in the judgment that: 1) Binur was not negligent as a matter of law; 2) he had no duty to obtain informed consent for the mastectomy; 3) informed consent to the mastectomy was properly obtained; and 4) any alleged act or omission of Binur was not a proximate cause of any injury or damages to Jacobo.
Jacobo appealed, arguing that the information Binur had given her "was not medically accurate" and had caused her to consent to surgery for "a disease that she did not have." She contended that because Binur "played a primary role in the preoperative, information-giving, consent obtaining portion of the surgery," he had a duty to properly inform her and obtain her informed consent. Jacobo's briefing also focused on the extent of Binur's participation as Schmidt's assistant during the mastectomy. She argued that Binur was a "co-surgeon" and therefore that he, as well as Schmidt, was required to obtain informed consent, which he had not done. At the conclusion of her brief, Jacobo suggested to the court of appeals that its holding should be as follows: "An assistant surgeon has the duty of obtaining a patient's informed consent only when the surgeon has an established doctor-patient relationship with the patient and voluntarily injects himself into the process by prescribing, recommending and/or performing the procedure."
The court of appeals concluded that although the duty to obtain a patient's informed consent does not extend to an assistant surgeon,4 there was conflicting summary judgment evidence "about whether Dr. Binur was an operating surgeon during the mastectomy with a direct obligation to the patient or a doctor whose only role was to assist during the procedure."5 The court of appeals also concluded that there was evidence that Binur breached a duty to obtain informed consent because "Dr. Binur essentially told [Jacobo] that there was no risk that the mastectomy was unnecessary because it was a certainty that she would develop breast cancer."6 Therefore, the court determined that a fact question existed on whether "Dr. Binur failed to disclose the risk that the mastectomy might have been unnecessary."7 With regard to proximate cause, the court of appeals concluded that based on Jacobo's affidavit, there was a fact question of "whether a reasonable person would have refused the mastectomy had she been accurately informed of the risk that the procedure might be unnecessary."8
Before we turn to the substantive issues raised by this appeal, we first address the court of appeals' decision that it would treat Binur's summary judgment motion as presenting only a motion under Rule 166a(b) and that it would disregard his "no evidence" contentions, brought under Rule 166a(i), because Binur presented summary judgment evidence.
Texas Rule of Civil Procedure 166a does not prohibit a party from combining in a single motion a request for summary judgment that utilizes the procedures under either subsection (a) or (b),9 with a request for summary judgment that utilizes subsection (i) and asserts that there is "no evidence of one or more essential elements of a claim or defense."10 The fact that evidence may be attached to a motion that proceeds under subsection (a) or (b) does not foreclose a party from also asserting that there is no evidence with regard to a particular element. Similarly, Sif a motion brought solely under subsection (i) attaches evidence, that...
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