The Texas Fourteenth Court of Appeals (“Texas Appellate Court”) held in its Memorandum Opinion issued on October 25, 2018: “We agree with appellees that their live pleading sufficiently pleads a claim for medical battery because it includes allegations that [the defendant oncologist] administered Hydrea without [the patient’s] consent. Additionally, [the appellees’ medical expert’s] report contains assertions supporting a medical battery claim. For example, … medical notes indicated that neither [the patient] nor her family were informed that [the patient] was diagnosed with and being treated for leukemia before Hydrea was administered, and [the patient] previously indicated that she did not consent to any chemotherapeutic agents if she was diagnosed with cancer.”
The Underlying Facts
The patient went to a Texas hospital complaining of shortness of breath. The defendant oncologist admitted the patient for evaluation of her white blood cell count. The appellees claimed that the defendant oncologist instructed hospital staff to perform a bone marrow biopsy on the patient and to administer to her a highly toxic drug (Hydrea) for treatment of leukemia. The appellees further alleged that the defendant oncologist instructed staff to administer the drug multiple times without obtaining the patient’s consent or informed consent. The patient died approximately one week later.
The appellees filed their Texas medical malpractice wrongful death lawsuit and included a report from their expert oncologist that stated that the defendant oncologist breached the standard of care that required the defendant to obtain informed consent from the patient before administering Hydrea, and that the defendant’s failure to obtain informed consent, followed by the administration of Hydrea, probably led the patient to develop tumor lysis syndrome, heart block, and kidney failure, which ultimately caused her death.
The defendant complained that the appellees’ expert’s report was inadequate regarding causation because: (1) it failed to state that a reasonable person would have refused to take Hydrea to reduce white blood cell count; and (2) it failed to explain how the failure to disclose the risks of Hydrea changed the patient’s outcome.
The Texas Appellate Court stated that an informed consent claim (i.e., the failure to disclose risks or hazards that could have influenced a reasonable person in making the decision to give or withhold consent) differs materially from a claim alleging that a patient gave no consent at all for the treatment. Performing a procedure without a patient’s consent is not the same as performing it without her informed consent: health care liability claims based on an allegation that medical care or a surgical procedure was performed without consent sound in medical battery or negligence.
The Texas Appellate Court held: “We agree with appellees that their live pleading sufficiently pleads a claim for medical battery because it includes allegations that [the cdefendant oncologist] administered Hydrea without [the patient’s] consent.”
Source Arani v. Fisher, No. 14-18-00117-CV.
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