Stephen L. Rush, M.D., and H. Zis Weisberg, M.D. v. Michael Honeycutt and Lisa Marie Honeycutt

NUMBER 13-05-579-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG STEPHEN L. RUSH, M.D., and H. ZIS WEISBERG, M.D., Appellants, v. MICHAEL HONEYCUTT AND, LISA MARIE HONEYCUTT, Appellees. On appeal from the 28th District Court of Nueces County, Texas. MEMORANDUM OPINION Before Chief Justice Valdez and Justices Yañez and Benavides Opinion by Chief Justice Rogelio Valdez Appellants, Stephen L. Rush, M.D. and H. Zis Weisberg, M.D., appeal from the trial court's judgment in favor of appellees, Michael and Lisa Honeycutt, in a medical malpractice case. We reverse and remand this matter to the trial court for proceedings consistent with this opinion. I. Factual and Procedural Background Because the issues in this case are settled, the Texas Rules of Appellate Procedure require us to "write a brief memorandum opinion no longer than necessary to advise the parties of the court's decision and the basic reasons for it." See Tex. R. App. P. 47.4. This is a medical malpractice suit regarding the issues of battery and informed consent. Appellee, Lisa Honeycutt, underwent a surgery that she understood to be a "laparoscopic exploration and left inguinal hernia repair" for abdominal pain. She signed a disclosure and consent form for "laparoscopic exploration and left inguinal hernia repair." The form provided that "I (we) understand that my physician may discover other or different conditions which require additional or different procedures than those planned. I (we) authorize my physician, and such associates, technical assistants and other health care providers to perform such other procedures which are advisable in their professional judgment." In the course of the surgery, the surgeon, Dr. Stephen Rush, found no hernia, but found clubbing and distension of Honeycutt's fallopian tubes. He called Dr. H. Zis Weisberg, Honeycutt's gynecologist, for a consultation. Dr. Weisberg instructed Dr. Rush to remove portions of Honeycutt's right and left fallopian tubes. Dr. Rush did so. Both of these physicians concede that there was no emergency that required the immediate removal of Honeycutt's fallopian tubes. Following surgery, the pathologist found mild endometriosis in the fallopian tubes. Appellees sued Doctors Rush and Weisberg and others for removing Honeycutt's fallopian tubes without her consent. The doctors moved for final summary judgment on all of appellees' causes of action. Appellees filed a traditional motion for partial summary judgment on their cause of action for battery. The trial court granted the doctors' motion for summary judgment on all causes of action except battery, and granted appellees' motion for summary judgment on that cause of action alone. The parties stipulated to damages in the amount of $20,000 per doctor for purposes of finalizing the judgment. This appeal ensued. II. Standard of Review The standards of review applicable in the instant case are well-established. The movant for traditional summary judgment must show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985). Once the movant establishes its right to summary judgment as a matter of law, the burden shifts to the non-movant to present evidence raising a genuine issue of material fact, thereby precluding summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979). When reviewing a traditional summary judgment, we take as true all evidence favorable to the non-movant, and we indulge every reasonable inference and resolve any doubts in the non-movant's favor. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004). When both sides move for summary judgment, and the trial court grants one motion and denies the other, we review both parties' summary judgment evidence and determine all questions presented. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000). III. Discussion Appellants contend that the trial court erred in granting appellees' motion for partial summary judgment on the battery claim because: (1) the battery claim is not recognized as a matter of law under Texas jurisprudence; (2) the battery claim is foreclosed as a matter of law because appellees signed a written consent authorizing this medically advisable procedure; (3) the battery claim is foreclosed as a matter of law because there is no evidence that the appellants caused any harm; (4) the battery claim is foreclosed because the appellees failed to offer any evidence of intent to harm or knowledge by the appellants that the procedure would be found offensive or provocative by appellee, Lisa Honeycutt, and, indeed, all the summary judgment evidence is to the contrary; (5) a referring physician such as Dr. Weisberg would not have any liability for a battery cause of action in this circumstance where he merely referred the patient and did not perform the surgery; and (6) Dr. Weisberg cannot be made liable under a battery theory because no such battery claim was pleaded against Dr. Weisberg. We conclude that the Medical Liability and Insurance Improvement Act ("the Act") (1) includes and addresses a claim for battery based on the failure to obtain informed consent; the surgery performed on Honeycutt--the removal of portions of her fallopian tubes--required express disclosure and consent; Honeycutt was harmed by the surgery; and fact issues regarding whether or not Honeycutt consented to the surgery preclude summary judgment. A. Battery and Medical Malpractice In their first issue, appellants contend that there is no battery cause of action as a matter of law in medical malpractice cases. According to appellants, section 6.02 of article 4590i mandates a negligence standard, and recent Texas Supreme Court cases mentioning a battery theory of liability are distinguishable. We disagree. The statutory cause of action for medical battery resulting from a procedure performed in the absence of fully informed consent after disclosure of all of the risks inherent in the procedure has been simplified by statute: In 1977, the legislature enacted the Medical Liability and Insurance Improvement Act. Section 6.02 of the Act . . . replaces the common law locality rule with a "reasonable person" rule. This reasonable person rule focuses on the disclosure which would influence a reasonable person in deciding whether to consent to a recommended medical procedure, rather than the disclosures the doctors in a certain community deem material. As a consequence . . . it is no longer necessary to introduce expert testimony regarding the standard of care in a certain community. Furthermore, the Texas Medical Disclosure Panel . . . will eliminate the need for expert medical testimony regarding the materiality of the risk in most cases. The panel is required to evaluate every medical and surgical procedure, determine whether disclosure is required, and, if so, how much disclosure is required . . . . Failure to disclose risks in medical procedures found on List A will create a rebuttable presumption that the doctor was negligent. Peterson v. Shields, 652 S.W.2d 929, 930-31 (Tex. 1983) (citations omitted, emphasis added). The Texas Supreme Court recently addressed a cause of action for battery in the context of medical treatment in Miller v. HCA, Inc., 118 S.W.3d 758 (Tex. 2003), and Murphy v. Russell, 167 S.W.3d 835 (Tex. 2005). In Miller, the court stated that "the general rule in Texas is that a physician who provides treatment without consent commits a battery." Miller, 118 S.W.3d at 767. In Murphy, the court stated that "[m]edical treatment will not constitute a battery unless it is provided without the patient's consent." Murphy, 167 S.W.3d at 838. Appellants contend that these cases are distinguishable because they concern instances where the patients were complaining of a complete lack of consent to treatment rather than a lack of informed consent. We disagree. Based on Miller and Murphy, we conclude that a cause of action for battery exists under the Act in the form of a cause of action for treatment without consent. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 6.02; see also Gomez v. Diaz, 57 S.W.3d 573, 581 (Tex. App.-Corpus Christi 2001, no pet.) ("Cases regarding whether a patient effectively consented to a medical procedure are expressly brought within the purview of the [Act]"). Accordingly, we overrule appellants' first issue. B. Informed Consent In their second issue, appellants argue that Honeycutt's cause of action for battery, if any, was foreclosed by the fact that she signed the consent form for an exploratory laparoscopy. According to appellants, the consent form authorized them to perform medically advisable procedures, and the removal of the diseased fallopian tubes was medically advisable. Under the Act, the Texas Medical Disclosure panel evaluates all medical and surgical procedures, determines if disclosure of risks involved in the procedures is required, and if so, determines how much disclosure is required. See id. § 6.04(a); Earle v. Ratliff, 998 S.W.2d 882, 891 (Tex. 1999); Dejean v. Wade, 44 S.W.3d 141, 144 (Tex. App.-Houston [14th Dist.] 2001, pet. denied). If the procedure requires some disclosure of the risks involved in the treatment, it is placed on List A of the Act. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 6.04; Earle, 998 S.W.2d at 891. However, if the Texas Medical Disclosure panel determines that no disclosure is required, the procedure is placed on List B of the Act. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 6.04; Earle, 998 S.W.2d at 891. Advising a patient of risks in compliance with the statute's required disclosure creates a rebuttable presumption that the physician was not negligent. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 6.07(a)(1); Knoll v. Neblett, 966 S.W.2d 622, 628 (Tex. App.-Houston [14th Dist.] 1998, pet. denied). On the other hand, failure to disclose, when required, creates a rebuttable presumption that the doctor was negligent. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 6.07(a)(2); Knoll, 966 S.W.2d at 628. In the instant case, "all fallopian tube and ovarian surgery with or without hysterectomy, including removal and lysis of adhesions" is a List A procedure, and accordingly, disclosure and consent was specifically required by statute. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 6.07(a)(2); Earle, 998 S.W.2d at 891; Knoll, 966 S.W.2d at 628. The concept that an "advisability" clause, allowing surgery for "such other procedures which are advisable" in the doctors' professional judgment, could obviate the necessity for express disclosure and consent directly conflicts with the mandatory disclosure and consent requirements established by statute for List A surgeries. The consent form at issue wholly failed to address or include the required disclosures pertaining to fallopian tube surgery and failed to indicate Honeycutt's consent to treatment. Accordingly, there is a rebuttable presumption in this case that the doctors were negligent. Peterson, 652 S.W.2d at 930-31. Appellants' second issue is overruled. C. Evidence of Harm In their third issue, appellants contend that if a battery cause of action is available, a successful plaintiff must show causation of harm. They argue that Honeycutt cannot show harm because the procedure was medically advisable and no harm resulted to Honeycutt. With regard to appellants' allegation that there is no evidence that the medical procedure performed was a proximate cause of injury to Honeycutt, we disagree with appellants' assertion that Honeycutt's allegedly pre-existing diminished fertility leads to the conclusion that she suffered no harm from the unauthorized amputation of her fallopian tubes. Legally compensable injuries include any "damage or harm to the physical structure of the body and such diseases or infection as naturally result therefrom, or the incitement, acceleration, or aggravation of any disease, infirmity, or condition, previously or subsequently existing, by reason of such damage or harm." Weidner v. Sanchez, 14 S.W.3d 353, 368 (Tex. App.-Houston [14th Dist.] 2000, no pet.). If appellants' exceedingly narrow understanding of a legally compensable injury was correct, there would be no action for any harm to a person's tonsils, appendix, or other largely vestigial organs. Furthermore, there would be no cause of action for the amputation of a paralyzed person's legs, and no action for the harm to a not-yet-viable fetus. None of these results is correct under Texas law, and appellants' disregard for the amputation of Honeycutt's fallopian tubes is equally incorrect. See id. In short, proof that the harm impaired an otherwise useful and perfectly functioning organ is not a necessary element of an informed consent cause of action in the context of medical treatment. We overrule appellants' third issue. D. Intent to Harm In their fourth issue, appellants argue that Honeycutt has failed to offer any evidence of intent to harm or reasonable knowledge on the part of appellants that Honeycutt would find the removal of her fallopian tubes offensive or provocative. The only authority provided by appellants for the proposition that a battery cause of action requires intentional or knowing conduct is the Texas Penal Code. See Tex. Pen. Code Ann. § 22.01 (Vernon Supp. 2006). However, under the Act and relevant law, intent to harm is not a required element for a cause of action for battery in a medical malpractice case. Murphy, 167 S.W.3d at 838; Miller, 118 S.W.3d at 767. In connection with this issue, appellants contend that Honeycutt was aware of and discussed the possibility of surgery on her feminine organs. Honeycutt vigorously denies this. This dispute creates a genuine issue of material fact precluding summary judgment. City of Houston, 589 S.W.2d at 678-79. Appellants' fourth issue is overruled. E. Referring Physician In their fifth issue, appellants argue that a referring physician such as Dr. Weisberg does not have a duty to obtain a patient's informed consent and cannot be liable for battery because he did not perform the surgery. We conclude that the summary judgment evidence raises a question of material fact regarding Dr. Weisberg's participation in the surgery at issue. The duty which devolves upon an assisting or referring physician to conform with the requirements of the informed consent doctrine is an unclear area of law. See Binur v. Jacobo, 135 S.W.3d 646, 657 (Tex. 2004) ("We do not reach or consider any of the court of appeals' determinations regarding assisting and 'operating' surgeons or the duty to obtain informed consent because of our disposition of other issues raised by the parties."); McMillin v. L.D.L.R., 645 S.W.2d 836, 841 (Tex. App.-Corpus Christi 1982, writ ref'd n.r.e.). However, given the testimony and evidence regarding Dr. Weisberg's role during the surgery, a factfinder could determine that Dr. Weisberg, although a non-surgeon, directed and controlled the surgery at issue, thus resulting in a duty to exercise reasonable care. Colonial Sav. Ass'n v. Taylor, 544 S.W.2d 116, 119 (Tex. 1976); Kimber v. Sideris, 8 S.W.3d 672, 678 (Tex. App.-Amarillo 1999, no pet.). In fact, the summary judgment evidence in the instant case indicates that Dr. Weisberg made the determination to remove portions of Honeycutt's fallopian tubes and so instructed Dr. Rush. Accordingly, based on the summary judgment evidence pertaining to Dr. Weisberg's actions in this case, we conclude that there is a genuine issue of material fact that precludes summary judgment in favor of Dr. Weisberg. We overrule appellants' fifth issue. F. Pleadings In their sixth issue, appellants argue that Dr. Weisberg canot be liable for a battery cause of action because Honeycutt never pleaded such a cause of action against him. Rules 45 and 47 require that pleadings give a short statement of the cause of action sufficient to give the opposing party fair notice of the claim involved. Tex. R. Civ. P. 45, 47; Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004). "A court should uphold the petition as to a cause of action that may be reasonably inferred from what is specifically stated . . . ." Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993). Based on our review of the pleadings at issue, a cause of action for battery, or lack of informed consent, was adequately pleaded against Dr. Weisberg. The appellees' petition specifically states that Dr. Rush, "after consulting with and obtaining the specific direction [of Dr. Weisberg], removed both of [Honeycutt's] fallopian tubes, even though neither physician had obtained the informed permission or consent for the surgical removal of these organs . . . The unauthorized surgery by [Doctors Rush and Weisberg], removing Plaintiff's fallopian tubes rendered [Honeycutt] permanently impaired and infertile." Appellants' sixth issue is overruled. IV. Conclusion Reviewing both parties' summary judgment evidence and determining all questions presented, we conclude that appellees presented a viable cause of action for informed consent and raised issues of material fact regarding that cause of action. FM Props. Operating Co., 22 S.W.3d at 872. To the extent that the trial court's decision foreclosed this viable cause of action, we reverse and remand this matter to the trial court for further proceedings consistent with this opinion. _______________________ ROGELIO VALDEZ, Chief Justice Memorandum Opinion delivered and filed this the 14th day of June, 2007. 1. The Medical Liability and Insurance Improvement Act is now codified in Chapter 74 of the Texas Civil Practice and Remedies Code. Act of June 2, 2003, 78th Leg. R.S., ch. 204, 2003 Tex. Gen Laws 847 (subsequently codified at Tex. Civ. Prac. & Rem. Code Ann. § 74.101 (Vernon 2005). However, the prior statute, Texas Revised Civil Statues article 4590i, continues to govern this case and all citations will be to that statute.