Janie Sanchez and Kenneth Adams, Spouse v. Lowry Schaub, M.D., and Kevin Crawford, M.D.

Court of Appeals of Texas

Janie Sanchez and Kenneth Adams, Spouse v. Lowry Schaub, M.D., and Kevin Crawford, M.D.

DecidedFebruary 2, 2006

Docket07-04-00057-CV

StatusPublished

This text of Janie Sanchez and Kenneth Adams, Spouse v. Lowry Schaub, M.D., and Kevin Crawford, M.D. (Janie Sanchez and Kenneth Adams, Spouse v. Lowry Schaub, M.D., and Kevin Crawford, M.D.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Janie Sanchez and Kenneth Adams, Spouse v. Lowry Schaub, M.D., and Kevin Crawford, M.D., (Tex. Ct. App. 2006).

Pincite

Opinion

NO. 07-04-0057-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

FEBRUARY 2, 2006

______________________________

JANIE SANCHEZ and KENNETH ADAMS,

Appellants

v.

LOWRY SCHAUB, M.D. and KEVIN CRAWFORD, M.D.,

Appellees

_________________________________

FROM THE 237^TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2002-518,200; HON. SAM MEDINA, PRESIDING _______________________________

Opinion _______________________________

Before QUINN, C.J. and CAMPBELL, J.⁽¹⁾

The dispute before us involves informed consent and whether Janie Sanchez gave same to Lowry Schaub, M.D., and Kevin Crawford, M.D., before performing a stellate ganglion block on her.⁽²⁾ According to the record before us, the block was her third under the recommendation or with the approval of Crawford. At the time, Crawford and Schaub had just completed a procedure whereby they placed Sanchez under general anesthesia and manipulated her wrist. Some time before undergoing the wrist manipulation but after having received the first two ganglion blocks, Sanchez verbally told Crawford that she did not want any more blocks. Because of this, Crawford suggested the wrist manipulation as an alternative.

The record further indicates that after Sanchez received the third block while under general anesthetic, a large abscess developed at the site of the injection. This resulted in her experiencing pain and eventually having several of her spinal discs fused. So, Sanchez sued the two doctors, contending, among other things, that they acted without her informed consent. Upon entertaining cross-motions for summary judgment, the trial court granted those of Crawford and Schaub while denying that of Sanchez. The two doctors had argued that their patient had consented to the block via the written consent forms executed before undergoing the manipulation. We reverse the summary judgment.

Three issues are before us. The first concerns whether Crawford and Schaub were entitled to judgment as a matter of law. The second involves whether Sanchez proved the lack of consent as a matter of law. The third covers whether the trial court erred in purportedly excluding parol evidence. We now address the first.

Informed Consent

As previously mentioned, Sanchez purportedly told Crawford of her refusal to undergo further blocks or other treatment entailing injections for the pain in her wrist. Nevertheless, she signed several consent forms granting him and Schaub authority to proceed with the manipulation and administer anesthetics. Therein appeared the following language:

I . . . understand that my physician may discover other or different conditions which require additional or different procedures than those planned. I . . . 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 . . . [;]

I . . . do hereby voluntarily consent and request such diagnostic procedures, hospital care, medical, surgical or x-ray treatment by Dr. Crawford, and such associates, assistants, designees, or other health care providers as are necessary in the judgment of the doctor, and further authorize the performance of such diagnostic studies or procedures which, in the professional opinion of such doctor, are advisable to attempt to remedy the condition(s) which have been explained to me as fracture left distal radius[;]

It has been explained that during the course of the operation and the procedure(s) named herein, other or different conditions may be revealed that necessitate an extension of the original procedure(s) or additional or different procedure(s) than those set forth herein. I . . . therefore authorize and request such doctor, his associates, assistants, designees, or other health care provider to perform such procedures as are advisable in the professional judgment of such doctor. The authority granted herein shall extend to remedying all conditions that require treatment and which may not be known to such doctor at the time the procedure(s) or operation is commenced . . . [;]

I . . . understand that anesthesia involves additional risks and hazards but I . . . request the use of anesthetics for the relief and protection from pain during the planned and additional procedures. I . . . realize the anesthesia may have to be changed possibly without explanation to me . . . ; [and,]

I . . . consent to the administration of any anesthesia deemed advisable to be applied by or under the direction of Dr. Schaub and/or an anesthesiologist on the Medical Staff of Methodist Hospital.

(Emphasis added). From the above, we see that the forms spoke in terms of informed consent viz the medical procedures to be completed and the anesthetics to be administered. Moreover, the words used withheld from the doctors unbridled discretion to act. For instance, their authority to undertake procedures other than the wrist manipulation (which the forms expressly alluded to) was conditioned by such terms as "advisable in their professional judgment," "necessary in the judgment of the doctor," "in the professional opinion of such doctor, are advisable," "advisable in the professional judgment of such doctor," and "require[d]." In other words, Crawford (who was to perform the manipulation) was given permission to undertake other medical procedures, but they had to be necessary, required, or advisable in his professional judgment.

Similarly conditioned was the anesthesiologist's (i.e. Schaub's) discretion in administering anesthetics. Though one form stated that Sanchez consented to the "administration of any anesthesia," the anesthesia and its mode of administration had to be "advisable." The other form said nothing about the anesthesia being advisable by anyone. Yet, there, the "use of anesthetics" was linked to "the relief and protection from pain during the planned and additional procedures." (Emphasis added). So, the administration of anesthetics under the second form was dependent upon the medical procedures pursued, which, in turn, were dependent upon the doctor's professional judgment and opinion. Thus, the ability of the physicians to act and the scope of consent granted by Sanchez revolved around and were limited by concepts such as necessity, judgment, and advisability.

Next, authority holds that when practicing medicine, doctors represent that they possess the reasonable degree of skill and learning possessed by others in their profession. Zapata v. Rosenfeld, 811 S.W.2d 182, 184 (Tex. App.-Houston [1^st Dist.] 1991, writ denied); Dennis v. Allison

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