Bryan v. Watumull

• Decision Date: 24 July 2007
• Docket Number: No. 05-06-00018-CV.,05-06-00018-CV.
• Citation: 230 S.W.3d 503
• Parties: Valerie BRYAN, Appellant v. Dr. Denton WATUMULL, Appellee.
• Court: Texas Court of Appeals

230 S.W.3d 503

Valerie BRYAN, Appellant v. Dr. Denton WATUMULL, Appellee.

No. 05-06-00018-CV.

Court of Appeals of Texas, Dallas.

July 24, 2007.

Benton Musslewhite, Law Office of Benton Musslewhite, Helen Dryden O'Conor, Houston, Ben C. Martin, Law Offices of Ben C. Martin, L.L.P., Dallas, for appellant.

Cathy F. Bailey, Steed Flagg, LLP, Diana L. Faust, R. Brent Cooper, Michelle E. Robberson, Devon Joy Singh, Cooper & Scully, P.C., Dallas, for Dr. Denton Watumull.

Before Justices MORRIS, FRANCIS, and MAZZANT.

OPINION

Opinion by Justice MAZZANT.

Valerie Bryan appeals an adverse medical malpractice jury verdict in favor of Dr. Denton Watumull. In seven issues, she argues jury charge error, legal and factual sufficiency, improper exclusion of evidence, and erroneous dismissal of certain claims. For the reasons stated below, we affirm the trial court's judgment.

PROCEDURAL HISTORY

This medical malpractice case was brought by appellant against appellee based on his alleged failure to obtain informed consent before performing a surgical procedure to address symptoms of carpal tunnel syndrome. The lawsuit was filed on September 5, 2002. Because appellant's claim was filed before the repeal of article 4590i of the Texas Revised Civil Statutes, it is governed by the provisions of article 4590i in effect at the time her suit was filed.¹ The trial court granted appellant leave to file an amended pleading adding additional negligence claims. Prior to trial, however, the court dismissed all of appellant's claims except for her claim for lack of informed consent.²

The trial court granted a directed verdict in favor of appellee on the issues of malice and gross negligence, and the jury returned a take-nothing verdict in favor of appellee on the informed consent claim. The trial court rendered judgment for appellee on September 18, 2005 based on the jury's verdict.

DISCUSSION

Jury Charge

In her first issue, appellant claims the trial court committed harmful error in submitting jury question number one and the accompanying instruction on the legal requirements of informed consent because it misstated the law, misled the jury, improperly commented on the evidence, and probably caused the rendition of an improper verdict.

The standard of review for alleged jury charge error is abuse of discretion. Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex.2006); Steak & Ale of Tex., Inc. v. Borneman, 62 S.W.3d 898, 904 (Tex.App.-Fort Worth 2001, no pet.). A trial court abuses its discretion by acting arbitrarily, unreasonably, or without consideration of guiding principles. Borneman, 62 S.W.3d at 904.

When submitting the jury charge, a trial court is afforded more discretion when submitting instructions than when submitting questions. Borneman, 62 S.W.3d at 904; Wal-Mart Stores, Inc. v. Middleton, 982 S.W.2d 468, 470 (Tex.App.-San Antonio 1998, pet. denied). However, the discretion afforded during the submission of instructions is not absolute. See TEX.R. CIV. P. 277. According to rule 277, a trial court must submit instructions "as shall be proper to enable the jury to render a verdict." Id.

For an instruction to be proper, it must: (1) assist the jury, (2) accurately state the law, and (3) find support in the pleadings and evidence. TEX.R. CIV. P. 277, 278; Borneman, 62 S.W.3d at 904. An instruction that misstates the law as applicable to the facts or one that misleads the jury is improper. Jackson v. Fontaine's Clinics, Inc., 499 S.W.2d 87, 90 (Tex.1973); Owens-Corning Fiberglas Corp. v. Martin, 942 S.W.2d 712, 721-22 (Tex.App.-Dallas 1997, no pet.).

The issue of whether a doctor failed to fully inform a patient of the risks of surgery is governed by the Medical Liability and Insurance Improvement Act (MLIIA). TEX.REV.CIV. STAT. ANN. art. 4590i, § 6.02 (Vernon 2002); Ocomen v. Rubio, 24 S.W.3d 461, 468 (Tex.App.-Houston [1st Dist.] 2000, no pet.). The MLIIA created the Texas Medical Disclosure Panel to evaluate all medical and surgical procedures, determine if disclosure of risks is required, and if so, determine how much disclosure was required. TEX.REV.CIV. STAT. ANN. art. 4590i, § 6.04(a); Earle v. Ratliff, 998 S.W.2d 882, 891 (Tex.1999).³ If the procedure requires some disclosure of the risks involved in the treatment, it is placed on List A. TEX.REV.CIV. STAT. ANN. art. 4590i, § 6.04; Earle, 998 S.W.2d at 891. However, if the Texas Medical Disclosure Panel determines that no disclosure is required, the procedure is placed on List B. TEX.REV.CIV. STAT. ANN. art. 4590i, § 6.04; Earle, 998 S.W.2d at 891.

Both parties agree that the peripheral nerve surgery performed on appellant, a carpal tunnel syndrome and right radial nerve release operation, was a List A procedure requiring certain disclosures. Specifically, according to the Texas Medical Disclosure Panel, appellee was required to disclose the following risks for a peripheral nerve operation: (A) numbness; (B) impaired muscle function; (C) recurrence or persistence of the condition that required the operation; (D) continued, increased, or different pain. See 25 TEX. ADMIN. CODE § 601.2(m)(4).

For procedures on List A, the informed consent is "considered effective" if it is in writing and signed by the patient or a person authorized to give the consent and by a competent witness. See TEX.REV.CIV. STAT. ANN. art. 4590i, § 6.06; Knoll v. Neblett, 966 S.W.2d 622, 628 (Tex.App.-Houston [14th Dist.] 1998, pet. denied).⁴ Advising a patient of risks in compliance with the statute's required disclosure creates a rebuttable presumption the physician was not negligent. See TEX.REV.CIV. STAT. ANN. art. 4590i, § 6.07(a)(1); Knoll, 966 S.W.2d at 628. On the other hand, if the procedure is on List A and the written consent does not comply with the statute, the statute creates a rebuttable presumption the physician was negligent in failing to obtain informed consent. See TEX.REV.CIV. STAT. ANN. art. 4590i, § 6.07(a)(2); Knoll, 966 S.W.2d at 628. The presumption must be included in the jury charge. See TEX.REV. CIV. STAT. ANN. art. 4590i, § 6.07(a)(2).

At trial, appellant argued appellee was negligent for failing to tell her prior to the surgery that reflex sympathetic dystrophy (RSD)⁵ was a potential risk of the surgical procedure. Appellant testified that after the surgery she experienced excruciating pain that eventually spread throughout her entire body and was not aided by pain medication. Two physicians she consulted after the surgery diagnosed her with RSD. Appellant insisted she never would have undergone the operation had appellee explained to her before the surgery that RSD was a risk of the operation.

According to the Texas Administrative Code, RSD is not one of the risks that must be disclosed for peripheral nerve surgery. See 25 TEX. ADMIN. CODE § 601.2(m)(4). Furthermore, the expert testimony at trial agreed RSD is not included on the List A risks that must be disclosed for carpal tunnel surgery. Therefore, as a matter of law, appellee had no duty to disclose this risk and cannot be held liable for a lack of informed consent based on this risk. Our analysis thus turns to the errors alleged by appellant in the trial court's instruction on informed consent.

The trial court submitted the following instruction on informed consent:

Did Dr. Watumull fail to adequately disclose risks and hazards as required by law of the peripheral nerve operation?

The law requires Dr. Watumull to disclose to Valerie Bryan the following risks and hazards regarding a peripheral nerve operation, which includes an open carpal tunnel release and radial nerve release:

a. Numbness

b. Impaired muscle function

c. Recurrence or persistence of the condition that required the operation

d. Continued, increased, or different pain.

The failure of a physician to disclose those risks and hazards on a written form, signed by the person or a person authorized to consent for the patient and a competent witness, is presumed to constitute negligent failure to disclose such risks. This presumption may be overcome if the physician adequately disclosed such risks and hazards in some other manner.

The physician's disclosure of these risks and hazards on a written form, signed by the patient or a person authorized to consent for the patient and a competent witness, is presumed to comply with the legal requirements for informed consent.

On appeal, appellant focuses on the following alleged errors in jury question number one: (1) the trial court's addition of the sentence allowing the physician to disclose the risks "in some other manner;" (2) the trial court's refusal to include an instruction of "medical emergency" in connection with the physician's rebuttal burden; and (3) the trial court's refusal to include the word "specifically" in its charge and instruction.⁶

Here, the trial court's instructions substantially followed the instructions provided by the Texas Pattern Jury Charge (PJC). The trial court based jury question number one on the PJC instruction on informed consent when there is "[n]o emergency or other medically feasible reason for nondisclosure" and the "[d]isclosure [is] not in the statutory form." See COMM. ON PATTERN JURY CHARGE, STATE BAR OF TEXAS, TEXAS PATTERN JURY CHARGE — MALPRACTICE, PREMISES & PRODUCTS PJC 51.12 (2006). The comment to PJC 51.12 explains it should be used "if the evidence shows that the medical procedure was on the list requiring disclosure (list A) and disclosure is not made in statutory form but there is evidence of disclosure, such as evidence of oral disclosure." Id. PJC 51.12 (comment)⁷.

Appellant argues PJC 51.12 is in error because its use of the phrase "in some other manner" conflicts with the wording of the statute, which requires the informed consent to be in writing. We believe, however, appellant oversimplifies the informed consent statute. To begin with, the statute does not say the consent must be in writing. Under the informed consent statute...