05.29.18

Last week, the Texas Supreme Court issued five opinions and no grants. In one of these opinions, the Court addressed issues relating to the propriety of a broad-form negligence jury charge and the admissibility of expert testimony in the context of a medical-malpractice case.

Jim P. Benge, M.D. and Kelsey-Seybold Medical Group PLLC v. Lauren Williams is a healthcare-liability case on appeal from the First Court of Appeals. The claimant, Lauren Williams, underwent a laparoscopic-assisted vaginal hysterectomy (LAVH) performed by Dr. Jim Benge and his practice. Before the surgery, Dr. Benge met with Williams to discuss the potential risks and to obtain executed consent forms, which included a disclosure that he would be assisted by associates and assistants during the procedure. In fact, approximately half of the LAVH was performed by a resident, Dr. Giacobbe. Ultimately, Williams suffered catastrophic post-surgical consequences and pursued claims against her health care providers arguing that (1) Dr. Benge was negligent in using an inexperienced resident to assist with her LAVH procedure and (2) Dr. Benge was negligent in disclosing Dr. Giacobbe's involvement.

Although Williams continued to characterize Dr. Benge's nondisclosure as "deceitful" throughout trial, Williams did not claim that the nondisclosure precluded informed consent or provided a basis for liability. At trial, the jury was asked to determine whether Dr. Benge's negligence proximately caused Williams' injuries; however, the trial court declined to instruct the jury not to consider the nondisclosure. The jury found in favor of Williams.

On appeal Dr. Benge made two arguments: (1) Williams' expert was not qualified under the Texas Medical Liability Act and (2) the trial court erred in failing to instruct the jury not to consider disclosure in its negligence determination. The First Court of Appeals agreed that the failure to instruct the jury was error and reversed and remanded for new trial.

The Supreme Court of Texas granted both parties' petition for review. First, the Court addressed whether Williams' expert was qualified under the TMLA. Focusing on the evidence establishing that the expert had extensive experience in practicing and teaching obstetrics and gynecology, the Court held that "the trial court was well within its discretion" to allow the physician to testify as an expert under the TMLA.

Second, the Court addressed the trial court's refusal to instruct the jury not to consider what Dr. Benge did or did not tell Williams about Dr. Giacobbe's involvement. Although Williams maintained that her arguments concerning nondisclosure were not intended as a claim for lack of informed consent and that Williams expressly disclaimed any such basis for liability, the Court focused on the record, which contained repeated arguments and lines of questions aimed at establishing that the nondisclosure betrayed Williams' trust and violated the standard of care. Based on the record, the Court concluded that the evidence and arguments at trial confused the issues of whether Dr. Benge was negligent in permitting Dr. Giacobbe to participate in the surgery and whether Dr. Benge was negligent in failing to disclose Dr. Giacobbe's involvement. In other words, because the trial court refused the limiting instruction, the Court could not tell whether the jury based its verdict on nondisclosure.

Because the broad-form question on a single theory - negligence - permitted the jury to find liability based on evidence that cannot support recovery, the presumption-of-harm rule applied; therefore, the Court affirmed the court of appeals determination that the charge error required a new trial.Last week, the Texas Supreme Court issued five opinions and no grants. In one of these opinions, the Court addressed issues relating to the propriety of a broad-form negligence jury charge and the admissibility of expert testimony in the context of a medical-malpractice case.

Jim P. Benge, M.D. and Kelsey-Seybold Medical Group PLLC v. Lauren Williams is a healthcare-liability case on appeal from the First Court of Appeals. The claimant, Lauren Williams, underwent a laparoscopic-assisted vaginal hysterectomy (LAVH) performed by Dr. Jim Benge and his practice. Before the surgery, Dr. Benge met with Williams to discuss the potential risks and to obtain executed consent forms, which included a disclosure that he would be assisted by associates and assistants during the procedure. In fact, approximately half of the LAVH was performed by a resident, Dr. Giacobbe. Ultimately, Williams suffered catastrophic post-surgical consequences and pursued claims against her health care providers arguing that (1) Dr. Benge was negligent in using an inexperienced resident to assist with her LAVH procedure and (2) Dr. Benge was negligent in disclosing Dr. Giacobbe's involvement.

Although Williams continued to characterize Dr. Benge's nondisclosure as "deceitful" throughout trial, Williams did not claim that the nondisclosure precluded informed consent or provided a basis for liability. At trial, the jury was asked to determine whether Dr. Benge's negligence proximately caused Williams' injuries; however, the trial court declined to instruct the jury not to consider the nondisclosure. The jury found in favor of Williams.

On appeal Dr. Benge made two arguments: (1) Williams' expert was not qualified under the Texas Medical Liability Act and (2) the trial court erred in failing to instruct the jury not to consider disclosure in its negligence determination. The First Court of Appeals agreed that the failure to instruct the jury was error and reversed and remanded for new trial.

The Supreme Court of Texas granted both parties' petition for review. First, the Court addressed whether Williams' expert was qualified under the TMLA. Focusing on the evidence establishing that the expert had extensive experience in practicing and teaching obstetrics and gynecology, the Court held that "the trial court was well within its discretion" to allow the physician to testify as an expert under the TMLA.

Second, the Court addressed the trial court's refusal to instruct the jury not to consider what Dr. Benge did or did not tell Williams about Dr. Giacobbe's involvement. Although Williams maintained that her arguments concerning nondisclosure were not intended as a claim for lack of informed consent and that Williams expressly disclaimed any such basis for liability, the Court focused on the record, which contained repeated arguments and lines of questions aimed at establishing that the nondisclosure betrayed Williams' trust and violated the standard of care. Based on the record, the Court concluded that the evidence and arguments at trial confused the issues of whether Dr. Benge was negligent in permitting Dr. Giacobbe to participate in the surgery and whether Dr. Benge was negligent in failing to disclose Dr. Giacobbe's involvement. In other words, because the trial court refused the limiting instruction, the Court could not tell whether the jury based its verdict on nondisclosure.

Because the broad-form question on a single theory - negligence - permitted the jury to find liability based on evidence that cannot support recovery, the presumption-of-harm rule applied; therefore, the Court affirmed the court of appeals determination that the charge error required a new trial.