The Supreme Court of Texas (“Texas Supreme Court”) issued an opinion on May 25, 2018 that overturned a $1.9 million Texas Medical Malpractice verdict because the issues of whether the defendant attending surgeon was negligent in involving and supervising an inexperienced resident surgeon who had never performed the procedure, and whether the defendant surgeon was negligent in failing to disclose to the plaintiff what was required to obtain her informed consent (the plaintiff did not allege a lack of informed consent claim), are completely different, and the plaintiff’s evidence and argument at trial confused the Texas medical malpractice jury.

The 39-year-old Texas medical malpractice plaintiff underwent a laparoscopic-assisted vaginal hysterectomy (“LAVH”) to remove her uterus, ovaries, and fallopian tubes, during which she suffered a bowel perforation that was not immediately diagnosed, resulting in catastrophic post-surgical consequences.

The defendant surgeon had obtained the plaintiff’s informed consent for the procedure for which the plaintiff agreed “that the physician may require other physicians including residents to perform important tasks based on their skill set and, in the case of residents, under the supervision of the responsible.” The defendant surgeon was assisted in the surgery by a third-year resident who had significant experience with hysterectomies and laparoscopic surgeries, but she had not previously assisted with a LAVH surgery, a fact that the defendant surgeon did not disclose to the plaintiff.

The plaintiff offered evidence during the Texas medical malpractice trial that the defendant surgeon failed to disclose to the plaintiff the resident’s experience level and degree of involvement in the surgery. The plaintiff argued throughout the trial that the defendant’s nondisclosure was deceitful and betrayed her trust in him.

The plaintiff’s expert testified during trial that the lack of disclosure violated the standard of care and was negligent. However, the plaintiff never claimed that the nondisclosure precluded her informed consent or otherwise provided a basis for liability. The Texas medical malpractice jury was asked a single question on liability: Did [the defendant’s] negligence proximately cause [the plaintiff’s] injuries?

The defendant objected to the question because it allowed the jury to base its finding on a violation of informed consent that the plaintiff did not claim. The defendant requested that the jury be instructed that in deciding whether the defendant was negligent, it cannot consider what he told, or did not tell, the plaintiff about the resident being involved with the surgery. The trial court overruled the defendant’s objection and refused to give the Texas medical malpractice jury the requested instruction. The Texas medical malpractce jury returned its verdict in favor of the plaintiff, and the defendant appealed.

Texas Supreme Court Decision

The Texas Supreme Court stated that the plaintiff steadfastly disclaimed any assertion that the defendant is liable for failing to obtain her informed consent to surgery, acknowledging that she consented in writing to the possible involvement of a resident in her LAVH procedure. The plaintiff also did not contend that she misunderstood the consent forms she signed. Nonetheless, the plaintiff contended that the defendant was liable for his negligence in allowing the resident in particular—with no experience in performing the surgery—to assist in the LAVH procedure, in assigning her the surgical tasks he did, and in supervising her work.

The plaintiff further contended that the defendant not only allowed the resident to assist in surgery, he also failed to disclose that the resident had never performed an LAVH procedure and that she would be significantly involved in the surgery.

The Texas Supreme Court rejected the plaintiff’s argument that her evidence of the defendant’s nondisclosure was not a claim of lack of informed consent for which he could be liable. The Texas Supreme Court stated that it “fail[ed] to see the difference” between the plaintiff’s claim of nondisclosure, which she clearly makes, and a claim of lack of informed consent, which she disclaims: “Her nondisclosure claim cannot be viewed as anything other than a claim of lack of informed consent.”

The Texas Supreme Court stated that based on the plaintiff’s expert’s testimony, the Texas medical malpractice jury could have found that the defendant surgeon was negligent in failing to disclose the resident’s involvement in the surgery and her lack of experience, which claim the plaintiff did not asert. The Texas Supreme Court held that the error was not harmless, reversed the Texas medical malpractice verdict, and remanded the case for a new trial.

Source Benge v. Williams, No. 14-1057.

If you or a loved one suffered serious harm in Texas or in another U.S. state that may be due to surgical malpractice, you should promptly find a Texas medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your surgical malpractice claim for you and represent you in a surgical medical malpractice case, if appropriate.

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