Knoll v. Neblett, 14-96-00226-CV

• Decision Date: 05 February 1998
• Docket Number: No. 14-96-00226-CV,14-96-00226-CV
• Parties: Joyce KNOLL and James Knoll, Appellants, v. Charles NEBLETT, M.D., Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 622

966 S.W.2d 622

Joyce KNOLL and James Knoll, Appellants, v. Charles NEBLETT, M.D., Appellee.

No. 14-96-00226-CV.

Court of Appeals of Texas Houston (14th Dist.).

Feb. 5, 1998.

Rehearing Overruled March 5, 1998.

John Holloway, Houston, for appellants.

John Strawn, Merritt McReynolds, Houston, for appellee.

Before LEE, YATES and EDELMAN, JJ.

OPINION

LEE, Justice.

This is a medical malpractice case. After a jury trial, the court below entered a take nothing judgment in favor of the physician, appellee, Dr. Charles Neblett. Joyce Knoll, appellant, who is joined in the suit by her husband, James, raises twenty-four points of error complaining that the trial court erred in denying her motion for directed verdict based on lack of informed consent, in submission of the charge, the admission of evidence, and that the jury's verdict is not supported by factually or legally sufficient evidence. We affirm.

Background

The claims in this suit arise out of a surgical procedure performed on appellant's back in 1984 with the use of a laser and microscope. Appellant had a history of low back, hip and leg pain for several years before the surgery in question. Appellant had several previous back surgeries, beginning with surgery for a ruptured disk in 1977. Before that surgery, appellant had a myelogram and suffered a bad reaction from the dye used. After that surgery, appellant suffered from multiple infections, including bacterial meningitis. The physicians attending her discovered a rupture in the dura, the thin membrane lining the nerve, which had leaked spinal fluid after the laminectomy. ¹ Appellee, a neurosurgeon, first operated on appellant when he was called in to assist in closing the dura in March 1977. Appellant returned to appellee for treatment throughout 1978. In 1979, after performing another myelogram using a different dye, appellee first diagnosed appellant with arachnoiditis, which is described as excessive scar tissue in the arachnoid, the tissue lining the outer surface of the nerves in the lower back, causing compression of the nerves.

In January of 1979, appellee performed another surgery on appellant, using hand held instruments, to alleviate the arachnoiditis. Appellant showed some improvement after the 1979 surgery, but began having more difficulty by the end of the year. She continued to see appellee for treatment. During this time, appellant was unable to sit and had to lie on a cot when attending church or visiting friends. She was able to walk in high heels. In March 1983, appellant and appellee began discussing another surgery, including the possible use of laser surgery for appellant's arachnoiditis. These discussions continued during her July 24, 1984 office visit, after which appellant decided to have surgery. It is disputed, however, as to what type of surgery appellant agreed to have appellee perform.

Appellee performed microlaser surgery on appellant's lower back to alleviate the scar tissue from arachnoiditis on October 8, 1984 at Methodist Hospital in Houston. ² The results of this 1984 surgery are hotly disputed and form the subject of this suit. In her suit, appellant contends that as a result of appellee's negligence in performing this surgery, she has suffered partial paralysis, loss of bladder and bowel control, atrophy of the right leg, and other injuries. She also alleges the surgery was unnecessary and experimental and that appellee failed to obtain her informed consent. She asserts she would not have consented to the surgery had she been fully advised of the risks. She further alleges negligent misrepresentation and failure to disclose, and that her signature on the hospital's consent form was obtained through fraud.

After a jury trial, the trial court entered a take-nothing judgment based on the jury's verdict. This appeal resulted. ³

Informed Consent

In appellant's second point of error, she alleges the trial court erred in denying her motion for directed verdict because appellee failed to obtain her written informed consent for the laser surgery, the consent form incorrectly stated the reason for the surgery, and the form failed to state the risks associated with the surgery. The form described appellant's condition as "ruptured disc," and it is undisputed that appellant was not diagnosed with a ruptured disc before the 1984 surgery, but she had a ruptured disc repaired through surgery in the past. The consent form also stated that the surgical procedure planned was a "lumbar laminectomy with laser." It did not list specific risks involved in the procedure, but instead simply indicated "as Discussed with My Physician," which appellant initialed.

Under Rule 301 of the Texas Rules of Civil Procedure, a directed verdict is proper when:

(1) a defect in the opponent's pleadings makes them insufficient to support a judgment; (2) the evidence conclusively proves a fact that establishes a party's right to judgment as a matter of law; or (3) the evidence offered on a cause of action is insufficient to raise an issue of fact.

M.N. Dannenbaum, Inc. v. Brummerhop, 840 S.W.2d 624, 629 (Tex.App.--Houston [14th Dist.] 1992, writ denied). In our review, we consider all of the evidence in a light most favorable to the non-moving party, disregard all contrary evidence and inferences, and give the non-moving party the benefit of all inferences arising from the evidence. See Qantel Business Sys., Inc. v. Custom Controls Co., 761 S.W.2d 302, 303 (Tex.1988). If there is any conflicting evidence, an instructed verdict is improper and the issue must go to the jury. White v. Southwestern Bell Tel. Co., 651 S.W.2d 260, 262 (Tex.1983).

Recovery for a claim that a doctor failed to fully inform a patient of the risks of surgery is governed by the Medical Liability and Insurance Improvement Act (the Act). TEX.REV.CIV. STAT. ANN. art. 4590i, § 6.02 (Vernon Supp. Pamph.1997). The Act created the Texas Medical Disclosure Panel, which prepares two separate lists of medical treatments and surgical procedures that do and do not require disclosure of risks, referred to respectively as List A and List B. Id. at § 6.04(b). Advising a patient of risks in compliance with the statute's required disclosure creates a rebuttable presumption that the physician was not negligent. Id. at § 6.07(a)(1). Failure to so disclose when required creates a rebuttable resumption that the doctor was negligent. Id. at § 6.07(a)(2).

Neither presumption is applicable in this case, however. The parties agree that the surgery at issue in this case is not on List A or B. In those cases where the Panel has not made a determination of the type of disclosure required, as here, the Act provides that the physician is under the "duty otherwise imposed by law." Id. at § 6.07(b). The Texas Supreme Court has defined this duty as being the same duty imposed in section 6.02 of the Act: "to disclose all risks or hazards which could influence a reasonable person in making a decision to consent to the procedure." Peterson v. Shields, 652 S.W.2d 929, 931 (Tex.1983).

For procedures on List A, the informed consent must be in writing. Section 6.06 of the Act provides: "Consent to medical care that appears on the panel's list requiring disclosure shall be considered effective under this subchapter if it is given in writing, signed by the patient or a person authorized to give the consent and by a competent witness, and if the written consent specifically states the risks and hazards that are involved in the medical care or surgical procedure in the form and to the degree required by the panel under [the Act.]" TEX.REV.CIV. STAT. ANN. art. 4590i, § 6.06 (Vernon Supp. Pamph.1997). The Act makes no such requirement for procedures that are not on List A.

Because there were no statutorily required disclosures for this laser surgery in 1984, the Act does not require disclosure to be made in writing. Appellee testified that he explained to appellant the risks that a reasonable person would consider in deciding whether to have the laser surgery. Appellee testified he discussed the risks and possible complications of the laser surgery fully with appellant during an office visit in March 1983, and so noted in his office records. Appellant acknowledged she remembered this discussion of the laser surgery in 1983. He again discussed the surgical risks with appellant during her next visit in July 1984, and again noted this discussion in his records. Appellee testified he told appellant he would "operate on the low back area, lumbar area, L4-5 the main area, some above and below and that we had to work on those nerves, had to take the scar tissue off these nerves external and internal, both as needed," and he would go "into the area of the cauda equina." He told her of the risk of death or that her condition could be worsened. He testified he told her that her pain, numbness, weakness, bladder and bowel problems could be increased and that she could become totally paralyzed. He warned of the possibility of spinal fluid leak and infection, hematoma and other problems associated with any surgery.

The defense expert, Dr. Robert Parrish, also a neurosurgeon, testified appellee complied with the standard of care and acted consistently with what an ordinary physician would have done. He testified that typically he explains the risks of surgery to the patient before the surgery, he writes a surgical order and sends it to the hospital, and a hospital nurse then fills in the consent form for signature. The "operative permit" in this case stated "lumbar laminectomy with laser," which was appropriate. Dr. Parrish explained that frequently some bone may be removed in an operation to remove scar tissue. Appellee testified that "laminectomy" was still the appropriate term to use, even though bone would not necessarily be removed. He testified that "lumbar laminectomy" commonly refers to any surgery in this region of the spine and the "generic" term was...