Opinion
No. 05-17-00004-CV
04-16-2018
REBECCA PETERS, Appellant v. BRUCE BYRNE, M.D., Appellee
On Appeal from the 439th Judicial District Court Rockwall County, Texas
Trial Court Cause No. 1-14-1077
MEMORANDUM OPINION
Before Chief Justice Wright and Justices Francis and Brown
Opinion by Justice Brown
In this medical malpractice case, Rebecca Peters appeals a take-nothing judgment following a jury trial. Peters contends the trial court erred in refusing to (1) submit a jury question about whether Bruce Byrne, M.D., obtained her informed consent to a panniculectomy and (2) permit Byrne to be questioned about his testimony in another case. We affirm the trial court's judgment.
In her live pleading, Peters alleged she saw plastic surgeon Byrne in September 2011 for a possible torn abdominal muscle. Byrne noted abdominal bulging and wide abdominal separation or diastasis and discussed Peters's options. At a follow-up appointment, Byrne found a hernia adjacent to the navel. He ordered surgery to repair the hernia and wide diastasis. Peters underwent surgery in December 2011. The surgical report indicated that in addition to the hernia and diastasis recti repair, Byrne performed a panniculectomy, which involves removing excess skin from the lower abdominal area. Peters alleged she suffered many post-operative problems, including problems with how the wound drained and healed. As a result, the wound became infected and Peters required emergency surgery in February 2012. Peters alleged Byrne was negligent in several regards, including causing or allowing an infection to occur and not properly treating it and failing to obtain her informed consent for the panniculectomy.
The jury charge contained two questions. Question 1 asked, "Did the negligence, if any, of Bruce Byrne, M.D., proximately cause the injury in question?" "Negligence" was defined as "failure to use ordinary care, that is, failing to do that which a plastic surgeon of ordinary prudence would have done under the same or similar circumstances or doing that which [a] plastic surgeon of ordinary prudence would not have done under the same or similar circumstances." The jury answered no and did not reach Question 2 about damages. In accordance with the verdict, the trial court's judgment ordered that Peters take nothing.
In her first issue, Peters contends the trial court erred in refusing to submit a question in the jury charge asking if Byrne obtained her informed consent prior to conducting the panniculectomy procedure. We disagree.
Prior to the surgery performed by Byrne, Peters signed a form titled "Disclosure and Consent for Medical and Surgical Procedures." Peters voluntarily consented and authorized procedures to "repair periumbilical hernia and diastasis recti and possible placement of Xenmatrix." She also authorized Byrne to "perform such other procedures which are advisable in [his] professional judgment." The consent form did not specifically mention a panniculectomy. The form provided, "[T]here are risks and hazards related to the performance of the surgical . . . procedures planned for me. I (we) realize that common to surgical . . . procedures is the potential for infection, blood clots in the veins and lungs, hemorrhage, allergic reactions, and even death" and referenced an "attached list." The separate list, also signed by Peters, set out the risks and complications for different categories of procedures, with a box next to each kind of procedure. Two boxes were checked, one for all surgeries and one for abdominoplasty. The listed risks and complications included infection, wound healing problems, and the need for drains.
Peters testified that neither Byrne nor anyone else at his office discussed a panniculectomy with her either before or after her surgery and she never gave consent for that procedure. Byrne acknowledged that the consent form did not mention a panniculectomy. He testified that as of December 14, 2011, the day Peters signed the consent form, he was not planning to perform a panniculectomy. Byrne's position was that he obtained Peters's consent for the panniculectomy. Referring to the risks and complications form, Byrne testified that he got consent for the abdominoplasty and that the form included all of the risks which are "part and parcel" of a panniculectomy. He stated that "a panniculectomy is a small portion of what an abdominoplasty is. It's the same identical incision. It's the same dissection - - well, less dissection than a true abdominoplasty." According to Byrne, he explained to Peters preoperatively that he might take off a strip of skin, but did not use the term "panniculectomy."
According to Peters's expert, Dr. Vincent Caldarola, Byrne performed the panniculectomy without Peters's consent. Caldarola testified that Byrne "took her to surgery and did a procedure that wasn't authorized." He testified the risks and complications form did not provide consent for the panniculectomy procedure.
Peters objected to the charge's failure to include an instruction on her informed consent claim and orally requested three questions including, "Did Bruce Byrne, M.D., fail to disclose to Rebecca Peters such risks and hazards inherent in the panniculectomy that could have influenced a reasonable person in making a decision to give or withhold consent to such treatment?" The trial court denied the request. The judge orally informed the jury that the issue of informed consent was not before it and that its sole duty was to address the issues in the charge.
We review the trial court's decision not to submit a particular question for an abuse of discretion. Park N. Serv. Ctr., L.P. v. Applied Circuit Tech., Inc., 338 S.W.3d 719, 721 (Tex. App.—Dallas 2011, no pet.). The trial court is required to submit a properly requested question that is raised by the pleadings and evidence and is necessary to enable the jury to render a verdict. Id.; TEX. R. CIV. P. 278.
Byrne argues Peters did not make a proper request because her oral request was not in writing and a pretrial written request was not in substantially correct form. See TEX. R. CIV. P. 278. We will assume, without deciding, that Peters properly requested the informed consent questions under rule 278.
Peters pleaded informed consent and contends she also presented significant evidence entitling her to a question on the issue. She refers to her own testimony as well as that of Byrne and Caldarola. She also relies on testimony from the administrator of the surgery center, who stated that Peters consented to a repair of a periumbilical hernia and diastasis recti, and Byrne's expert, who acknowledged the word "panniculectomy" was not on any form shown to Peters before the surgery.
The evidence on which Peters relies, as well as the argument she presents, raises the issue of medical battery rather than an informed consent claim. An informed consent claim is governed by section 74.101 of the civil practice and remedies code and is a particular subspecies of negligence based on a failure to disclose the risks or hazards of a procedure. Schaub v. Sanchez, 229 S.W.3d 322, 323-24 (Tex. 2007). Section 74.101 provides that in a suit against a physician based on the physician's failure to disclose the risks and hazards of a surgical procedure, the only theory on which recovery may be obtained is that of negligence in failing to disclose risks or hazards that could have influenced a reasonable person in making the decision to give or withhold consent. TEX. CIV. PRAC. & REM. CODE ANN. § 74.101 (West 2011). Medical battery, on the other hand, is defined as performing a medical act or treatment on a patient without consent. Benge v. Williams, 472 S.W.3d 684, 709 (Tex. App.—Houston [1st Dist.] 2014, pet. granted); see Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005); Haynes v. Beceiro, 219 S.W.3d 24, 26 (Tex. App.—San Antonio 2006, pet. denied). Performing a procedure without a patient's consent is not the same as performing it without her informed consent. Schaub, 229 S.W.3d at 324.
Peters seeks to distinguish Schaub, a supreme court opinion cited by the trial court when it denied her requested jury questions. In Schaub, the plaintiff sued two doctors, a surgeon and an anesthesiologist, for failing to obtain her informed consent to a spinal injection called a stellate ganglion block. Id. at 322. The plaintiff had two stellate ganglion blocks performed due to pain, numbness, and tingling in her hand. Id. at 323. The blocks were ineffective, and the plaintiff told the surgeon she did not want another block. He recommended an alternative surgical procedure. Before that procedure, the plaintiff signed two consent forms which did not give specific consent to a stellate ganglion block. Id. at 322-23. During surgery, the surgeon saw signs of "an acute flare-up" of a condition that could cause severe pain and reduce the benefits of surgery. Id. at 323. The doctors determined a stellate ganglion block would mitigate these symptoms and performed a third one. The plaintiff argued her lack of consent to the block supported a claim for lack of informed consent. Id. But the supreme court upheld the trial court's summary judgment in favor of the doctors "because the summary judgment record conclusively negate[d] [the plaintiff's] informed consent claim." Id. The supreme court held that an action for total lack of consent sounds in battery or negligence, not informed consent under section 74.101. Id. at 324.
Peters notes Schaub was decided on a motion for summary judgment. She also points out the plaintiff in Schaub had undergone the medical procedure at issue two times before and was knowledgeable about its risks. And although the Schaub plaintiff had specifically refused consent to undergo the procedure a third time, the surgeon observed an acute flare-up that required immediate mitigation. Despite these differences, the fact remains that like the plaintiff in Schaub, Peters's evidence raised the issue of a lack of consent rather than a lack of informed consent. Her claim was that Byrne performed a panniculectomy without her consent, not that she consented to a panniculectomy without being fully informed of the risks and hazards of that procedure. Although some of the witnesses were asked about or testified about "informed consent," the substance of their testimony was about a total lack of consent. Peters fails to address the distinction between lack of consent and lack of informed consent. As in Schaub, the evidence before the trial court did not support a claim that Byrne failed to obtain Peters's informed consent. See id. The trial court did not abuse its discretion in failing to submit the issue of informed consent to the jury.
Here, Byrne moved for summary judgment on Peters's informed consent claim on grounds the consent form authorized him to perform any other procedure he felt advisable and disclosed the risks of abdominoplasty, which are the same as the risks of panniculectomy. The trial court denied the motion. Byrne did not move for summary judgment based on the distinction between informed consent and "no consent."
Peters asserts in the alternative that even if there was no error in failing to submit the requested charge, the trial court should have granted her motion for a mistrial. After the verdict, Peters filed a written motion for mistrial on grounds the court erred in "allowing the parties to fully try Plaintiff's claim of lack of informed consent, but the refusing to submit a jury issue on said claim." We review a trial court's ruling on a motion for mistrial under an abuse of discretion standard. Shaw v. Lemon, 427 S.W.3d 536, 544 (Tex. App.—Dallas 2014, pet. denied). Peters cites no law for the proposition that a mistrial is appropriate under these circumstances. Having determined that the court did not abuse its discretion in denying Peters's requested instructions, we likewise conclude it did not abuse its discretion in denying Peters's motion for mistrial. We overrule Peters's first issue.
In her second issue, Peters contends the trial court erred in refusing to permit her to question Byrne about his testimony in a pending case in which he was also the defendant. We review a trial court's evidentiary rulings for abuse of discretion. U-Haul Int'l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012). A trial court abuses its discretion when it acts without regard to guiding rules or principles. Id.
In a pretrial motion in limine, Byrne asserted that evidence regarding other lawsuits or claims against him was irrelevant and that its probative value was outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Byrne asked that Peters refrain from inquiring about any other past or pending lawsuits against him without first showing, outside the presence of the jury, that there was a substantial similarity between the incidents. The trial court granted Byrne's motion in limine.
At trial, Peters's counsel asked Byrne if he would have difficulty admitting if his conduct in this case was below the standard of care. Byrne stated he did not feel his care was below the standard of care. Counsel asked him whether he would say that no matter what he did or did not do. Byrne answered negatively. Then counsel asked, "Even if you were to do a medical procedure on the wrong part of the body, you would say you didn't act below the standard of care; isn't that true?" Byrne objected to relevancy. Outside the presence of the jury, the judge told Peters's counsel, "Well, to be very clear so I've got it on the record, you can't ask that question because I've already granted the limine." Peters argued that Byrne's unwillingness to admit that operating on the wrong body part is below the standard of care went to his credibility on the standard of care. The judge indicated the question was a problem because it "starts going to specific acts and other bad conduct" and cited rules of evidence 403 and 404. The judge said Peters could ask a generic question about whether Byrne would admit falling below the standard of care, but refused to allow Peters to get into specifics.
Peters made an offer of proof that in a deposition for a pending lawsuit, Gaitan v. Byrne, when asked whether his operation on the wrong finger in that case was below the standard of care, Byrne testified that it was not. Further, Byrne's own expert in that case testified in his deposition that Byrne's care was below the standard of care. Peters again argued the jury was entitled to know Byrne had no credibility when testifying about the standard of care. The judge stood by his earlier ruling.
After her appellate brief was filed, Peters filed a motion asking this Court to take judicial notice of an October 2017 jury verdict in favor of the plaintiff in Gaitan. We decline to take judicial notice of a verdict handed down after the trial court made the evidentiary ruling at issue. See In re Estate of Kam, No. 05-16-00126-CV, 2016 WL 7473905, at *6 (Tex. App.—Dallas Dec. 29, 2016, pet. denied) (mem. op.) (appellate court may take judicial notice only of facts that could have been properly judicially noticed by trial judge). By separate order, we deny the motion.
Under rule 404, evidence of a crime, wrong, or other act is not admissible to prove a person's character to show that on a particular occasion the person acted in accordance with the character. TEX. R. EVID. 404(b)(1). There is a general aversion in Texas to using specific instances of conduct for impeachment. TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 242 (Tex. 2010). Texas civil courts have consistently rejected evidence of specific instances of conduct for impeachment purposes, no matter how probative of truthfulness. Id. To the extent Peters sought to impeach Byrne with evidence he operated on the wrong body part in another case, such evidence was inadmissible.
Citing criminal cases, Peters argues the question was permissible because any question which might have a tendency to affect a witness's credibility is a proper question. See Koehler v. State, 679 S.W.2d 6, 9-10 (Tex. Crim. App. 1984) (court erred in refusing to allow defendant to cross-examine witness on subjects that might have shown malice, bias, ill feeling, animus or prejudice toward defendant); Diggs v. State, 928 S.W.2d 756, 757 (Tex. App.—Houston [14th Dist.] 1996), pet. dism'd, 963 S.W.2d 78 (Tex. Crim. App. 1998). She argues the court denied her the opportunity to challenge Byrne's credibility about whether his treatment fell below the standard of care. We do not agree that the trial court had to allow the question in this civil case. Evidence regarding whether Byrne met the standard of care in a case involving hand surgery was not relevant to whether he met the standard of care in this case. See TEX. R. EVID. 401. Even if it could be said to have some relevance, the trial court had the discretion to determine that any probative value was substantially outweighed by the danger of unfair prejudice or confusion of the issues. See TEX. R. EVID. 403. Peters does not discuss rules 401 and 403. The court allowed Peters to address the issue of whether Byrne could admit to falling below the standard of care through generic questions. We cannot conclude the trial court's decision to disallow specific questions about the other lawsuit was an abuse of discretion in these circumstances. We overrule Peters's second issue.
During oral argument, Peters provided a cite to a civil case in support of this proposition, Torres v. Danny's Service Co., 266 S.W.3d 485 (Tex. App.—Eastland 2008, pet. denied). But the one case Torres cites for the proposition is a criminal case. Id. at 487.
We affirm the trial court's judgment.
/Ada Brown/
ADA BROWN
JUSTICE 170004F.P05
JUDGMENT
On Appeal from the 439th Judicial District Court, Rockwall County, Texas
Trial Court Cause No. 1-14-1077.
Opinion delivered by Justice Brown, Chief Justice Wright and Justice Francis participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee BRUCE BYRNE, M.D. recover his costs of this appeal from appellant REBECCA PETERS. Judgment entered this 16th day of April, 2018.