With today’s orders, the Texas Supreme Court issued an opinion in one pending case and set an argument date for a certified question case.

Argument date in certified insurance question

In August, the Court accepted the Fifth Circuit’s invitation to resolve a disputed question of Texas insurance law in EWING CONSTRUCTION COMPANY, INCORPORATED v. AMERISURE INSURANCE COMPANY, No. 12-0661 . (You can read more about the case in this earlier post.)

Now that the parties have completed briefing the case, the Court has set the case for oral argument on February 5, 2013.

The Court sides with the patient in a claim over a chiropractor’s failure to obtain informed consent

This is an unusual doctor-patient lawsuit because it falls through some of the gaps in the Texas medical-malpractice statute.

The doctor here was a chiropractor, and the patient suffered a stroke during “manipulation” of the spine. As the Court relates, the doctor “was well aware of the risk of stroke from chiropractic neck manipulation. Just that morning, he had been reading an article on the subject.”

At trial, the jury found in favor of the doctor that the actual manipulation of the spine had not been done negligently but in favor of the patient on an “informed consent” theory that the doctor had failed to disclose a risk that would otherwise have dissuaded the patient from undergoing the procedure. The judgment was for roughly $742,000.

The court of appeals reversed, applying Section 74.101 of the Texas medical-liability act governing informed consent.

The Texas Supreme Court took a detour that is interesting but does not change the result, holding that the statutory provision actually does not apply to this case. That is because a chiropractor, although a “health care provider” for some parts of the statute, “is not a physician and ‘medical care'” (the term used in this section) “can only be provided by physicians.” Because that statute did not apply, the Court fell back to Texas common law principles of informed consent. In the end, however, it concluded that the duty rule was the same: “[i]n this case, certainly, and probably all cases, the common-law and statutory duties are congruent.”

The duty question asks if the risk here (a stroke) was inherent in the procedure such that it should have been disclosed. The court of appeals held that it was not, reasoning that the injury would not have happened but for the patient’s own physical condition (an unhealthy artery).

The Supreme Court took a different view of the evidence:

this ignores the evidence that Felton’s injury also would not have occurred but for Lovett’s treatment, that chiropractic neck manipulation can result in vertebral artery dissection and does so in a significant number of cases, and that dissection and stroke are known risks of chiropractic treatment that should be disclosed. Felton’s injury occurred during treatment, as a direct result of treatment. The same kind of injury may occur in other patients undergoing the same kind of treatment. The risk that a patient will not respond well to treatment is clearly one that inheres in the treatment.

Concluding that there was a duty for the chiropractor to have informed the patient of this risk, the Supreme Court reversed the court of appeals and remanded to that court to consider some other appellate issues that it had previously left unresolved.