Greene v. Thiet

• Decision Date: 25 November 1992
• Docket Number: No. 04-92-00154-CV,04-92-00154-CV
• Parties: Raquel GREENE, Appellant, v. Michelle THIET, M.D. & Matilda Perkins, M.D., Appellees.
• Court: Texas Court of Appeals

Page 26

846 S.W.2d 26

Raquel GREENE, Appellant, v. Michelle THIET, M.D. & Matilda Perkins, M.D., Appellees.

No. 04-92-00154-CV.

Court of Appeals of Texas,

San Antonio.

Nov. 25, 1992.

As Modified on Denial of Rehearing

Jan. 13, 1993.

George W. Mauze, II, Law Offices of Mauze & Jones, San Antonio, for appellant.

George F. Evans, Jr., William R. Crow, Jr., Ball & Weed, P.C., Bruce E. Anderson, Brin & Brin, P.C., San Antonio, for appellees.

Before PEEPLES, BIERY and GARCIA, JJ.

BIERY, Justice.

Appellant's motion for rehearing is denied. Our opinion of November 25, 1992 is modified to add footnote 1.

This summary judgment appeal presents the following issues:

a) the burden of a defendant-physician who moves for summary judgment on the causation elements in an informed consent case following the 1977 enactment of the Medical Liability and Insurance Improvement Act, TEX.REV.CIV.STAT.ANN. art. 4590i, § 6.02 (Vernon Supp.1992).

b) if causation is sufficiently negated, the burden on the plaintiff-patient to controvert with expert medical summary judgment evidence that the patient did in fact suffer an injury because of the doctor's conduct.

Plaintiff/appellant, Raquel Greene, brought suit against the defendants-physicians, Michelle Thiet, M.D. and Matilda Perkins, M.D., alleging a lack of informed consent. Drs. Thiet and Perkins moved for summary judgment. The trial court granted the motion, specifically finding that the defendants-physicians had sufficiently negated the causation element of Ms. Greene's cause of action. In one point of error, Ms. Greene appeals. We affirm.

Appellant Greene was originally seen by Dr. Thiet on August 25, 1988, seeking abdominoplasty and liposuction, but was turned down for the procedure pending weight loss. She returned to Dr. Thiet on January 20, 1989. She had developed symptomatic cholelithiasis and had been scheduled for a cholecystectomy to be performed by Dr. Perkins. Ms. Greene requested the abdominoplasty and liposuction be performed at the same time as the cholecystectomy, and both defendants-physicians agreed. Prior to the surgeries, Ms. Greene signed informed consent forms agreeing to the surgeries and acknowledging she had been advised of the risks involved in each surgery. Although appellant denies she was informed of the increased risks of wound healing problems associated with the simultaneous performance of a cholecystectomy and an abdominoplasty/liposuction, the record contains a postoperative report stating:

The patient [was] informed that the risk of complications are slightly increased with concurrent abdominal operations. She has also been apprised of the complications as listed on the operative permit and she is fully aware of them. She requests that the procedure be performed. ¹

The procedure was performed uneventfully on February 16, 1989. Appellee Perkins was the lead surgeon during the cholecystectomy and the assistant surgeon during the abdominoplasty and liposuction. Appellee Thiet was the lead surgeon on the abdominoplasty and liposuction and the assistant surgeon on the cholecystectomy. The surgeries took just under four hours which, according to the record, was within the time normally expected for an abdominoplasty and liposuction alone.

Following the surgery, Ms. Greene suffered numerous post-surgical complications due to wound healing problems. These problems resulted in necrosis of the tissue, which necessitated three debridements after her discharge. Subsequently, she was admitted to the hospital for a skin graft. Because of the healing problems which allegedly necessitated further medical care, including additional surgeries to correct scarring, pain, poor cosmetic results, disfigurement and the resulting mental anguish, Ms. Greene filed suit against Drs. Thiet and Perkins. Appellant Greene does not dispute that skin necrosis is a recognized complication of abdominoplasty and liposuction, and that skin necrosis can, and does, occur in the absence of any negligence on the part of the operating surgeon. Rather, she contends summary judgment was improperly granted because a genuine issue of material fact exists as to whether the defendants-physicians caused appellant Greene's injuries because of a failure to inform her of the increased risk of complications due to performing both surgeries simultaneously. She contends she would not have had both surgeries had she been so informed. Appellant Greene originally sued also on the grounds of traditional negligence in performing the surgeries, but subsequently amended her pleadings to delete the negligence cause of action.

A defendant in a medical malpractice action is entitled to summary judgment when the summary judgment proof establishes, as a matter of law, that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff's cause of action. White v. Wah, 789 S.W.2d 312, 315 (Tex.App.--Houston [1st Dist.] 1990, no writ); see also Zapata v. Rosenfeld, 811 S.W.2d 182, 183-84 (Tex.App.--Houston [1st Dist.] 1991, writ denied) (upholding summary judgment on pleadings in medical malpractice claim involving alleged contract to cure). When moving for summary judgment, the defendant-physician has the burden to negate one or more of the following elements of the patient's claim: (1) a duty of the physician to conform to a certain standard of care; (2) a failure to conform to the required standard; (3) resulting injury; and (4) a causal connection between the defending party's conduct and the injury. White, 789 S.W.2d at 315; Pinckley v. Gallegos, 740 S.W.2d 529, 531 (Tex.App.--San Antonio 1987, writ denied); Wheeler v. Aldama-Luebbert, 707 S.W.2d 213, 217 (Tex.App.--Houston [1st Dist.] 1986, no writ).

This fourth element, the causal connection, is usually defined by the courts in terms of what is called "proximate cause" or "legal cause." PROSSER & KEETON ON THE LAW OF TORTS § 41, at 263 (5th ed. 1984). The most common problem associated with proximate cause is that of "causation in fact." Id. at 264. Although classified as an issue of "fact," the standard test for determining cause in fact requires the factfinder to compare what did occur with what would have occurred if hypothetical, contrary-to-fact circumstances had existed. Id. As discussed in detail below, in an informed consent case, the factfinder is required to determine whether a reasonable person would have refused the treatment or procedure had he been fully informed of the inherent risks which would influence such a decision. McKinley v. Stripling, 763 S.W.2d 407, 410 (Tex.1989). Additionally, a second prong of causation is that an act or omission by a defendant is not regarded as a cause of an injury if the particular injury would have occurred without it. See PROSSER & KEETON ON THE LAW OF TORTS, § 41, at 265. For example, the failure to install a proper fire escape on a hotel is no cause of the death of a man suffocated in bed by smoke. Smith v. The Texan, Inc., 180 S.W.2d 1010, 1012 (Tex.Civ.App.--Fort Worth 1944, writ ref'd w.o.m.) (no showing guest made any effort to use fire escape). From such circumstances, the United States Supreme Court derived a rule, commonly known as the "but for" or "sine qua non" rule, which may be stated as follows: the defendant's conduct is a cause of the plaintiff's injury if the injury would not have occurred but for that conduct. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285-87, 97 S.Ct. 568, 575-76, 50 L.Ed.2d 471 (1977). Conversely, the defendant's conduct is not a cause of the injury if the injury would have occurred even without the defendant's conduct sued upon. See Id. Applying this general rule to an informed consent case such as this, we believe the "but for" rule may be stated as follows: the defendant-physician's failure to disclose is not a cause of the patient's injury if the patient was not injured by the occurrence of the risk of which he was not informed.

Once the defendant-movant negates one or more of the essential components of the patient's cause of action, the burden shifts to the non-movant to produce controverting evidence raising an issue of fact as to the element or elements negated. Pinckley, 740 S.W.2d at 531, see also Baubles & Beads v. Louis Vuitton, S.A., 766 S.W.2d 377, 379-80 (Tex.App.--Texarkana 1989, no writ) (unless movant's proof is legally insufficient, non-movant must produce proof to avoid summary judgment). It is clear from the trial court's judgment that the defendants-physicians in the trial court successfully attacked appellant Greene's cause of action on the issue of causation. We focus, therefore, upon the summary judgment proof submitted on the issue of whether the defendants-physicians negated the causal connection between the failure to disclose the risks inherent in combining the medical procedures and appellant Greene's injuries. To determine whether the evidence supporting the motion for summary judgment is legally sufficient, we must consider the common law, the changes wrought by the enactment of the Medical Liability and Insurance Improvement Act ("the act" or "article 4590i"), and the effect of those changes upon this litigation. TEX.REV.CIV.STAT.ANN. art. 4590i, § 6.02 (Vernon Supp.1992).

In litigation concerning the question of informed consent before the enactment of article 4590i, unless the mode or form of treatment was a matter of common knowledge or was within the experience of the layman, the requisite proof of negligence had to be established through expert testimony. Hood v. Phillips, 554 S.W.2d 160, 165-66 (Tex.1977). The common law focused on the doctor, rather than upon the patient. Price v. Hurt, 711 S.W.2d 84, 87 (Tex.App.--Dallas 1986, no writ). The reasonableness of the defendant-physician's disclosure was determined by the standards followed by other health care providers in the same or a similar community. Id. The common law allowed the physicians to set the...