McKinley v. Stripling

763 S.W.2d 407, 32 Tex. Sup. Ct. J. 165, 1989 Tex. LEXIS 2, 1989 WL 774
CourtTexas Supreme Court
DecidedJanuary 11, 1989
DocketC-7426
StatusPublished
Cited by94 cases

This text of 763 S.W.2d 407 (McKinley v. Stripling) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McKinley v. Stripling, 763 S.W.2d 407, 32 Tex. Sup. Ct. J. 165, 1989 Tex. LEXIS 2, 1989 WL 774 (Tex. 1989).

Opinions

SPEARS, Justice.

The question presented is must the trial court ask a “proximate cause” issue to the jury in a medical malpractice informed consent case. No such instruction was requested by the plaintiffs, Geneva and Albert McKinley, and none was given to the jury. Based on the jury verdict, judgment was rendered for the plaintiffs against the defendant, Dr. Dennis Stripling. The court of appeals reversed the trial court’s judgment and held that the trial court’s failure to submit a proximate cause issue was error. 746 S.W.2d 502. The court of appeals [408]*408also held that McKinley’s failure to submit such an issue waived her right to recover on the claim.1 We affirm.

In 1980 Geneva McKinley broke her right wrist. She visited Dr. Scott Wallace, an orthopedic surgeon, who set the fracture. Upon removal of the cast it was determined that a malunion had occurred and the bones of the wrist were not set properly. McKinley also complained of numbness and tingling in her hand. Dr. Wallace referred her to a neurosurgeon. After treating the numbness, the neurosurgeon referred McKinley to Dr. Dennis Stripling concerning the malunion of the bones in her wrist. Dr. Stripling recommended an osteotomy be performed, a procedure requiring the bone to be refractured, a piece of pelvic bone be grafted to the arm, and a plate inserted to secure the bones while healing. This procedure was done in late 1980 by Dr. Stripling.

In March 1981 Dr. Stripling again performed surgery to remove the plate and screws inserted during the osteotomy and to explore McKinley’s thumb area to determine the cause of restricted thumb movement she was experiencing. Dr. Stripling discovered that a ruptured tendon to McKinley’s thumb was responsible for its restricted movement. During the surgery, he took a tendon from McKinley’s right index finger and connected it to her thumb. Dr. Stripling had never discussed this procedure with McKinley nor the risks incident to it. McKinley’s wrist was satisfactorily repaired; however, she found that she could not move her right index finger. It was acknowledged by Dr. Stripling that limited movement was an inherent risk of tendon transfer surgery.

Dr. Stripling again performed surgery on McKinley’s hand in an attempt to correct the problem with her index finger. Again, Dr. Stripling failed to disclose to McKinley the risks involved in the tendon transfer surgery. During the surgery, the doctor transferred a tendon from McKinley’s right middle finger to her index finger. After this surgery, McKinley complained of restricted middle finger movement. Ultimately, McKinley had another doctor perform corrective surgery after which she regained some function of her right fingers.

Geneva McKinley and her husband, Albert, sued Dr. Stripling, alleging negligent failure to disclose the risks incident to tendon transfer surgery. At trial, Dr. Stripling objected to McKinley’s failure to include a jury issue concerning proximate cause. McKinley argued that such a finding was unnecessary and refused to submit the proximate cause issue. The jury found that the limited movement McKinley complained of was an inherent risk of tendon transfer surgery; that these risks could influence a reasonable person in consenting to the operation; and that McKinley had suffered limited movement as a result of the surgeries performed. It is undisputed Dr. Stripling failed to inform McKinley of the risks incident to the surgery. Based on the jury verdict, the trial court rendered judgment for the McKinleys for $19,915.08.

The court of appeals reversed and rendered judgment for Dr. Stripling, holding that a jury finding of proximate cause was required to establish plaintiff’s case, and McKinley’s refusal to submit such an issue constituted a waiver of her cause of action. 746 S.W.2d at 506. The court of appeals said that the applicable standard for proximate cause was “whether disclosure would have caused the plaintiff, not an unspecified reasonable person, to refuse surgery.” 746 S.W.2d at 505 n. 2.

Four issues concerning consent were submitted to the jury, but no issue concerning proximate causation.2 McKinley con[409]*409cedes that causation is an element of her cause of action; however, she asserts that no independent issue on proximate causation need be submitted because the issues given to the jury sufficiently encompass causation, and to impose any further causation issues would conflict with the statute and court decisions.

A cause of action for the failure of a doctor to fully inform a patient of the risks of surgery is a negligence cause of action. Recovery is governed by the Medical Liability and Insurance Improvement Act of Texas. Tex.Rev.Civ.Stat.Ann. art. 4590i (Vernon Supp.1989). The act contains a specific provision relating to informed consent actions such as the case here:

In a suit against a physician or health care provider involving a health care liability claim that is based on the failure of the physician or health care provider to describe or adequately to disclose the risks and hazards involved in the medical care or surgical procedure rendered by the physician or health care provider, the only theory on which recovery may be obtained is that of negligence in failing to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent. •

Tex.Rev.Civ.Stat.Ann. art. 4590i § 6.02 (Vernon Supp.1989).

It is clear from the language of this statute that an action alleging a physician’s failure to obtain a patient’s informed consent is a suit based on negligence. Although the statute does not mention the term “proximate cause,” this is not disposi-tive of the issue before us. Before the statute was enacted, no one disputes that Texas law required that an issue on proximate causation be submitted. Wilson v. Scott, 412 S.W.2d 299, 302 (Tex.1967). Nothing in the statute subsequently enacted indicates that the legislature intended to eliminate this requirement. In the absence of any legislative history suggesting that juries no longer need to find proximate cause in informed consent cases, the statute’s omission of such an element is inconclusive. Traditional notions of liability in negligence actions require a finding of a duty, a breach of that duty, the breach was a proximate cause of injuries, and that damages occurred. W. Keeton, Prosser & Keeton on Torts § 30 (5th ed. 1984). A medical procedure informed consent case does not differ merely because a statute imposes the duty of disclosure. An issue on proximate causation must be submitted as in ordinary negligence cases so the jury may determine whether any breach of duty caused the injuries suffered. To hold otherwise would amount to an imposition of strict liability wherein a failure to warn and an undesirable surgical result would automatically create liability on the doctor.

This court has never addressed this precise question. McKinley argues that she relied on this court’s decisions in Peterson v. Shields, 652 S.W.2d 929 (Tex.1983), and Barclay v. Campbell, 704 S.W.2d 8 (Tex.1986), in framing the issues submitted to the jury in this case. However, neither of these cases suggests that only

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Cite This Page — Counsel Stack

Bluebook (online)
763 S.W.2d 407, 32 Tex. Sup. Ct. J. 165, 1989 Tex. LEXIS 2, 1989 WL 774, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckinley-v-stripling-tex-1989.