How are informed consent and medical battery claims different under Texas law?

 

Appellate court rules that a preliminary expert report properly addressed a medical battery claim against Tomball doctor

 
October 26, 2018

On October 25, 2018, Houston’s Fourteenth Court of Appeals entered a memorandum opinion that addresses an interesting issue related to a patient’s consent to medical treatment.

The case is styled Mohsen Shahpouri Arani, M.D. v. Ronnie J. Fisher et al.; Case No. 14-18-00117-CV (Tex. App.—Houston [14th Dist.]). It is on appeal from the 129th District Court, in Harris County, where the cause number is 2016-60520, and the Hon. Michael Gomez is the presiding judge.

The alleged medical negligence

According to the trial court pleadings, the patient, Maggie Jackson, went to Tomball Regional Medical Center with shortness of breath. Dr. Mohsen Arani, an oncologist, admitted her to the hospital to evaluate her high white blood cell count.

The plaintiffs allege that Dr. Arani entered orders for a bone marrow biopsy and administration of a highly-toxic drug for treatment of leukemia. According to the lawsuit petition, Dr. Arani made these orders and the hospital staff followed them, without anyone ever bothering to get consent, or permission from the patient for this treatment.

The story doesn’t end there. According to the plaintiffs, once Dr. Arani and the hospital discovered their mistake, they “attempted to pressure and coerce Ms. Jackson into giving her consent, retroactively.” The plaintiffs allege that they repeatedly tried to “trick and deceive” the patient into consenting to treatment that had already begun.

Sadly, Ms. Jackson died six days after being admitted to the hospital.

This reminds me of a case that I am handling, where a plastic surgeon waltzed in to the wrong patient’s room and, with the help of the nursing staff, took her to the operating room for surgery that was unneeded.

Defense arguments

When medical malpractice plaintiffs file a lawsuit in Texas, a short deadline kicks in, by which they must serve a detailed medical expert report on everyone named as a defendant. Specifically, the expert report is due within 120 days after each defendant answers.

Once a plaintiff produces the expert report, the defendant has 21 days to file objections to the sufficiency of the expert report.

In my experience as a Houston, Texas medical malpractice lawyer, many defendants and their attorneys and insurance companies waste time and resources on challenging expert reports that clearly meet the legal standard.

That’s exactly the issue that the Fourteenth Court of Appeals had to decide in this case.

The parties agree that the plaintiffs timely served an expert report from an oncologist, a cancer physician. The expert’s written report stated that Dr. Arani breached the standard of care, which required him to obtain informed consent from the patient before administering the medication. The expert concluded that this failure by Dr. Arani probably caused the patient to develop tumor lysis syndrome, heart block, and kidney failure, which ultimately caused her death.

Dr. Arani and his attorneys filed an on-time objection to the plaintiffs’ expert report, predictably arguing that it was deficient.

At the trial court level, Judge Gomez disagreed and denied Dr. Arani’s objections and motion to dismiss.

How did it get to the appellate court?

Many people find it interesting how cases like this get in front of an appellate court before they have even been presented to a jury.

The answer is that Texas law allows parties to file what is called an interlocutory appeal to challenge the trial court’s ruling related to objections or a motion to dismiss of a preliminary expert report. In this type of appeal, the entire underlying case is put on hold while the trial court’s ruling is appealed to an intermediate appellate court.

In my experience, almost all these defense challenges are frivolous and a waste of time and money. Over the past few years, decisions from the Texas Supreme Court and appellate courts in Houston and all over Texas suggest that most justices agree.

Informed consent

Texas law recognizes the right of patients to decide whether to receive treatment recommended by a health care provider. The process of obtaining a patient’s decision or permission is called informed consent.

Informed consent is such an important concept that the law requires physicians themselves to do it—in other words they can’t delegate this task to nursing staff. When having an informed conversation with the patient, the doctor must go over the risks and benefits of the proposed treatment, alternative treatments, or deciding to do nothing at all.

The Houston Court of Appeals discussed the well-settled Texas law for negligence in the failure to obtain informed consent. In my experience, when there is an informed consent complaint, the doctor or hospital typically has a consent form signed by the patient. Most people have experienced the rushed flurry of activity at a hospital, when the nurse hands a stack of papers to a patient without explaining anything.

This is the classic situation where a plaintiff may allege negligence in obtaining informed consent. To do so, the plaintiff must show that the physician was negligent in failing to disclose risks or hazards that could have influenced a reasonable person in making the decision to give or withhold consent. In that situation, the plaintiff’s expert report would analyze what a reasonable person would likely have decided, if all the risks had been disclosed, and whether the injury complained of was in fact caused by the undisclosed risk.

Zero consent is different

What’s interesting about the Court of Appeals opinion in this case is that it distinguishes an informed consent claim from one where no consent was given at all. In fact, the court describes these claims as “materially different.”

A medical malpractice claim based on an allegation that the medical care or surgery was performed without consent can be pursued under theories of medical battery or negligence.

The Fourteenth Court of Appeals rejected Dr. Arani’s informed consent arguments and, instead, noted that the plaintiff also alleged medical battery claims. The court went on to decide that the trial court didn’t abuse its discretion in finding that the expert report adequately addressed the allegation of medical battery by Dr. Arani.

What’s next

While this is a big victory for the plaintiff, the appellate court’s decision doesn’t mean that the case is over. The case now goes back to the trial court, where Judge Gomez will set it for trial in front of a jury.

We are here to help

If you or a loved one has been seriously injured or even died because of medical or hospital care, then the experienced medical malpractice attorneys at Painter Law Firm, in Houston, Texas, are here to help. Click here to send us a confidential email via our “Contact Us” form or call us at 281-580-8800.

All consultations are free, and, because we only represent clients on a contingency fee, you will owe us nothing unless we win your case. We handle cases in the Houston area and all over Texas. We are currently working on medical malpractice lawsuits in Houston, The Woodlands, Sugar Land, Conroe, Dallas, Austin, San Antonio, Corpus Christi, Bryan/College Station, and Waco.

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Robert Painter is a medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits against hospitals, physicians, surgeons, anesthesiologists, and other healthcare providers. A member of the board of directors of the Houston Bar Association, he was honored, in 2018, by H Texas as one of Houston’s top lawyers. Also, in 2018, the Better Business Bureau recognized Painter Law Firm PLLC with its Award of Distinction.

Robert Painter

Robert Painter is a medical malpractice lawyer at Painter Law Firm PLLC.

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