Johnson v. Whitehurst
| Decision Date | 03 February 1983 |
| Docket Number | No. 01-82-0286-CV,01-82-0286-CV |
| Citation | 652 S.W.2d 441 |
| Parties | Curtis JOHNSON, Appellant, v. Dr. J.R. WHITEHURST, et al., Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
John Holloway, Houston, for appellant.
Dan Ryan, and H. Ronald Welsh, Houston, for appellee.
Before EVANS, C.J., and JACK SMITH and DUGGAN, JJ.
This is an appeal from a take nothing judgment in a medical malpractice suit. The appellant, Curtis Johnson, asserts twenty-one points of error.
The appellant was hospitalized for gastro-intestinal bleeding on September 23, 1975. Dr. Bautista, a licensed internist, examined the appellant and diagnosed the appellant's condition as an active, bleeding duodenal ulcer. The appellant remained in the hospital, was put on a bland diet, and given an antacid to control the bleeding. Five days after admission to the hospital, the appellant informed Dr. Bautista that approximately six years before this hospitalization, he had been admitted to another hospital and treated for a peptic ulcer condition. Based on this new information, Dr. Bautista re-diagnosed the appellant's condition as: "A chronic, bleeding, duodenal ulcer that was recurrent and retractable to medical therapy."
Dr. Bautista then advised the appellant that he was going to consult with a surgeon to determine whether surgery could relieve the appellant's condition. Dr. Bautista called Dr. Whitehurst, advised him of the appellant's condition, and later that day, Dr. Whitehurst visited with the appellant in the hospital.
After Dr. Whitehurst's visitation with the appellant, he recommended that the appellant undergo a Billroth II procedure and a vagotomy. These two procedures consist of the removal of the lower portion of the stomach and a reconnection of the small intestine to a different area of the stomach. The vagus nerve extending to the lower stomach would also be removed to further reduce the secretion of acid into the stomach. After talking to the doctors, the appellant decided to proceed with the surgery and signed a surgery consent form.
Dr. Whitehurst performed surgery. After developing complications from the surgery, the appellant filed this suit against the two doctors. He alleged several theories for recovery.
The appellant testified that in 1979 he was hospitalized for bleeding of three ulcers which had formed after the operation by Dr. Whitehurst. He stated that during this hospitalization he required a blood transfusion consisting of eleven units of blood, and that he developed a reaction to foreign blood. He further stated that his doctor, Dr. Parnell Avery, had recommended additional surgery, hoping to cure the recurrence of the ulcers and the condition of permanent diarrhea. The appellant stated that because he had developed a reaction to foreign blood, surgery involved a greater risk of death. He has refused further surgery.
The appellant alleged at trial that Dr. Bautista had been negligent in recommending surgery and in failing to obtain the appellant's informed consent to surgery. He alleged that Dr. Whitehurst had been negligent in failing to obtain the appellant's informed consent to surgery, and had also been negligent in the performance of the surgery.
The trial court refused to submit special issues concerning negligence against Dr. Bautista, but submitted them against Dr. Whitehurst. After the jury answered all special issues in favor of Dr. Whitehurst, the court entered a take nothing judgment.
The appellant first complains of the trial court's refusal to submit special issues concerning Dr. Bautista's actions, and its refusal to grant a directed verdict against Dr. Bautista. The appellant raises separate arguments for his contentions and we will address them in the same manner.
The appellant contends that he submitted sufficient evidence to have the jury determine whether Dr. Bautista obtained the appellant's informed consent to surgery. He argues that Dr. Whitehurst and Dr. Bautista had a shared duty to apprise him of the alternatives to, and the complications of, surgery. Dr. Bautista, on the other hand, contends that this was the surgeon's duty and that he, as the attending physician, had no duty to apprise the appellant of the risk of surgery.
The resolution of the appellant's argument turns on whether Dr. Bautista had a duty to obtain the appellant's informed consent to surgery that was to be performed by another doctor.
In Texas, a doctor must secure the authority or consent of his patient in order to legally perform medical procedures. Doctors generally have a duty to make reasonable disclosures to their patients of the risk of medical treatment. This duty is based on the right of every normal adult to determine what shall be done to his own body. Where the doctor has failed to reasonably inform his patient of the risks, the patient is unable to intelligently arrive at a decision regarding the treatment. Thus, the doctor is said to have failed to obtain the patient's informed consent for the medical procedure. Wilson v. Scott, 412 S.W.2d 299 (Tex.1967); Anderson v. Hooker, 420 S.W.2d 235 (Tex.Civ.App.--El Paso 1967, writ ref'd n.r.e.); See generally; Purdue, Medical Malpractice--Cause of Action, 11 Hous.L.Rev. 2, 10 (1973).
In an action based on the physician's failure to obtain the informed consent of the patient, the plaintiff has the burden to prove by expert medical testimony, what a reasonable medical practitioner in the same or similar community, acting under the same or similar circumstances, would have disclosed to his patient about the risk incident to the proposed treatment. The plaintiff must also prove that the defendant physician departed from that standard, as well as proximate causation and damages. Wilson v. Scott, supra.
One of the most recent cases which has addressed the issue of the duty of a physician to obtain his patient's informed consent is Ross v. Sher, 483 S.W.2d 297 (Tex.Civ.App.--Houston [14th Dist.] 1972, writ ref'd n.r.e.). In Ross the court held that a fact question did not exist because the attending physician did not participate in the surgery, and thus had no duty to obtain the patient's informed consent. 483 S.W.2d at 301. This holding was based, in part, on an early Texas Supreme Court case which held that the referring doctor cannot be liable for the negligence of the doctor to whom he referred the patient, unless the referring doctor was negligent in recommending the second physician. Moore v. Lee, 109 Tex. 391, 211 S.W. 214 (1919).
A similar case is Bell v. Umstattd, 401 S.W.2d 306 (Tex.Civ.App.--Austin 1966, writ dism'd). In Bell, the plaintiff sued an anesthesiologist on the basis that the anesthesiologist failed to obtain the plaintiff's informed consent to the method in which the anesthesia was administered. The plaintiff had signed a surgical consent form which included his consent to the administration of the anesthesia. The court held that since the plaintiff did not inquire as to the method of the administration of the anesthesia, the anesthesiologist was not under a duty to obtain the patient's informed consent. The court reasoned that a surgical procedure may consist of many steps and involve many specialists. Therefore, it would be unreasonable to place a burden of full and complete disclosure upon each and every specialist involved, as to the specific methods intended to be used in an operation, and of all the possible risks involved in each step of an operation.
The reasoning utilized in Bell appears appropriate to apply to the instant fact situation. Dr. Bautista is not a surgeon and therefore could not perform the procedure. He recommended that Dr. Whitehurst be called into the case. Dr. Whitehurst is a surgeon, and being more familiar with the proposed surgical procedure, could inform the appellant of the possible risks and consequences. Under these facts, the law requires only that Dr. Bautista exercise ordinary care in choosing Dr. Whitehurst. The appellant has not alleged that Dr. Bautista was negligent in choosing Dr. Whitehurst. Therefore, since Dr. Bautista did not participate in the surgery, he had no duty to inform the appellant of the possible risks and complications involved in the operation.
Another problem with the appellant's contention is that there is no expert medical testimony as to what Dr. Bautista should have told the appellant regarding surgery. Dr. Avery, the appellant's medical expert, testified that in Houston, the standard medical practice is for surgeons to obtain the patient's informed consent. He further testified that in his opinion, the surgeon, not the internist, has a duty to obtain the patient's informed consent for surgery.
We hold that the appellant has failed to prove by expert medical testimony that Dr. Bautista had the duty to obtain the appellant's informed consent to surgery. We further hold, that under the facts of this case, there was no duty on the part of Dr. Bautista, the referring physician, to obtain the patient's informed consent to a surgical procedure to be performed by another doctor. The appellant's seventh point of error is overruled.
The appellant alleges that Dr. Bautista was negligent in recommending surgery in the first place. Dr. Parnell Avery the appellant's expert witness, testified that he probably would not have operated. However, he further testified that the appellant was a candidate for surgery and the four factors on which a doctor would base a recommendation for surgery were present in the appellant's case. Dr. Avery did not testify that Dr. Bautista was negligent in recommending surgery. The appellant has failed to meet his burden of proof. Wilson v. Scott, supra.
The appellant's second allegation is that Dr. Bautista negligently failed to obtain the appellant's informed consent to surgery. In view of our prior holding that Dr....
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