INFORMED CONSENT IN TEXAS:
THE PATIENT VS. MEDICAL DISCLOSURE
by
Mark Hooper
Bioethics
Professor Benson
Spring 1983
003^
OUTLINE
Thesis:
The standard, duty, and scope of informed consent as
set out by the Texas judiciary and legislature.
Introduction
I.
II.
Background Material
p.
3
The Professional Standard vs. The Patient Standard
p.
4
p.
5
..p.
7
A.
The Professional Standard:
The Majority
Position
B.
The Patient Standard:
The Minority Position
C.
Causation
D.
Majority vs. Minorities:
p. 11
The Distinctions and
Criticisms
III.
p. 12
Status of Texas Law
p. 17
A.
Requirement for Consent
p. 18
B.
What Composes "Informed" Consent:
C.
The Duty and
Scope of Disclosure
p. 21
The Privilege of Nondisclosure
p. 26
Outline Page ii
D.
Proximate Cause
E.
The Texas Medical Liability and Insurance
Improvement Act
Conclusion
Notes and References
p. 27
p. 29
p. 35
Scope
This paper attempts to collect and analyze illustrative
decisions in which the Texas courts have discussed the
particular factors which make up the standard, duty, and
scope of informed consent law.
Litigation in this area
over recent years has been extremely prolific.
As such,
no meaningful attempt has been made to gather every state
case on point.
Only the major Texas decisions along with
landmark holdings from other jurisdictions have been
examined.
The cases which are discussed are the ones most
frequently cited by commentators in the field.
INTRODUCTION
This paper addresses the topic, Informed Consent in Texas:
The Patient vs. Medical Disclosure.
It is generally accepted that the average patient knows very
little about medicine
1
Even those schooled in the medical
sciences agree that among themselves there is a wide variance
in the degree of medical knowledge each possesses in respect
to a particular field.
For his proposed treatment, the patient
must usually look to his treating physician for enlightenment
with which to reach an intelligent decision.
The concept of
the patient's right to make an informed choice coupled with
the realization of the ordinary person's lack of medical knowledge gave birth to the duty of the physician to make the
necessary disclosures of the risks that are incident to medical
diagnosis and treatment.
This duty is encompassed in the term
"informed consent."
Before we launch into all of the rules, regulations, concepts
and complexities surrounding this concept it would be well to
relate the often told story of the doctor about to give his
patient an injection, saying, "Don't worry, this won't hurt
a bit," prompting the latter to respond, "You mean, it won't
^
Hooper / page 2
you a bit."
This story seems to exemplify the whole purpose
of this discussion.
In actuality, it is the patient who
bears the risk of all medical procedures.
Therefore, it
should be his perogative to decide what risks to accept even
though the doctor believes the choice to be in error.
Accordingly, the patient would be in a position to control
his destiny as an individual and maintain his autonomy.
It must be noted that the author of this paper has been faced
with a life threatening situation and knows from personal
experience how a patient feels when placing oneself in the
hands of another.
In all fairness to the medical profession,
it is understood that they are the experts, but unfortunately
the doctors too often forget that they are dealing with the
whole person.
It is irrelevant whether or not the physician
"knows best"; it is the patient's body and the patient's life
we are discussing.
Too often the question of and need for
medical disclosure turns into a battle between the patient and
the physician.
to the patient.
However, information is of critical importance
Indeed, as one court put it, "Informed consent
is, legally speaking, as essential as a physician's care and
2
skill in the performance of the therapy."
Hooper / page 3
I.
BACKGROUND MATERIAL
Most discussion of informed consent dates from 1914 when
Justice Cardozo stated that "every human being of adult
years and sound mind has the right to determine what shall
3
be done with his own body."
The doctrine embodies a basic
right to physical integrity protected
by the United States
4
Constitution and the common law.
In Salgo v. Leland
Stanford Jr. University Board of Trustees,
5
a court recognized
for the first time that not only was the patient's consent
6
required but also that such consent must be informed.
The phrase "informed consent" has been criticized as being
confusing and contradictory.
7 Be that as it may, the court in
g
Canterbury v. Spence
defined it as "the informed exercise of
choice [to receive treatment which] entails an opportunity to
evaluate knowledgeably the options available and the
9
[predictable] risks attendant upon each [option]."
In short,
"patient comprehension is the keystone of true and viable
informed consent." 1 ^
Physicians have traditionally been held liable under a battery
theory when a completely unauthorized procedure was performed
or when the patient was mislead or misinformed. 1 1
Informed
consent began as an extension of the rules of assault and
battery.
The rationale behind the action was that unless the
Hooper / page 4
physician adequately informed the patient of the dangers
involved in an operation, the patient was unable to reach an
intelligent decision.
Thus, any consent given was a nullity.
12
Texas, along with the majority of states has recognized that
the traditional elements of assault and battery are absent in
13
most malpractice cases based upon lack of informed consent.
Thus, whether a doctor fulfills his duty to inform the patient
is a question of medical practice and therefore essentially
a question of negligence."1"4
Since the doctrine of informed consent was established the
courts have drawn distinct lines framing the concept in both
majority and minority rules.
With the above background
material in mind we will now briefly examine both views and
then concentrate on the Texas position.
II.
THE PROFESSIONAL STANDARD VS. THE PATIENT STANDARD
At present, depending in part on the commentator consulted,
there are two major tests used by the courts in ascertaining
whether a physician made available enough information to
allow the patient to make an informed decision as to what
shall be done with his body.
Each test has one or more sub-
parts which usually break down into subjective and objective
views.
Each test and its subparts will now be examined and
from this the Texas position will emerge.
06338
Hooper / page 5
A.
The Professional Standard:
The Majority Position
The majority of jurisdictions have adopted the position which
is exemplified by the holding of the 1974 United States Fifth
15
Circuit Court of Appeals case of Karp v. Cooley.
The Karp
rule "compels a physician to disclose facts which a reasonable medical practitioner in a similar community and of the
same school of medical thought
would have disclosed regarding
16
the proposed treatment."
Under this standard all that is
required is that the physician be certain that the information
he discloses conforms with that 17
which other physicians would
disclose in the same situation.
Karp makes it clear that
18
"only doctors are competent to testify about medical customs."
This competency of witnesses requirement makes it essential for
a plaintiff in an informed consent medical malpractice case to
establish the lack of knowledgeable consent through the introduction of expert testimony to show the physician's duty to
disclose.
However, it must be noted that some courts have con-
sidered the testimony of the
19 defendant physician to be sufficient
evidence of the standard.
Therefore, in the states which adhere to the Karp test, a
plaintiff must show:
1.
The physician defendant failed to inform him of the
nature or hazards of the procedure; and
2.
That the physician deviated from the standard of
003.19
Hooper / page 6
performance of other physicians in the area in
regard to disclosure and that such deviation
can be established by expert testimony.
Two rules must be kept in mind about the above requirements.
First, the duty to disclose increases with the seriousness
of the possible harm despite the fact that the probability
of occurence is very low.
20
Second, the standard referred
to in number two is a general one and is not limited by the
experience of the particular defendant physician.
21
At this point it should be stated that some commentators
have drawn a fine line distinction within the majority view
22
itself.
These writers point out that in addition to the
Karp standard, which is based on what a reasonable physician
would disclose, there is another line of cases which measures
23
the duty to disclose by "customary disclosure practices."
Rather than establishing a disclosure standard based on
similar circumstances,
disclosure is based on a community or
24
national standard.
This distinction is not widely
followed, however, so the majority view referred to in
further discussion will be that as set out by the court in
Karp.
00340
Hooper / page 7
B.
The Patient Standard:
The Minority Position
Recently, some courts have suggested that allowing the medical
community to set the standard (which is the basis of the
majority view) overlooks the fact that there can be no
recovery by a patient if there is no existing medical custom
to disclose, despite the fact that in the particular situation
in question it might have been unreasonable to withhold infor25
mation.
Consequently, these courts have ruled that the
determination of when the duty to disclose arises is a nonmedical decision and is based on the patient's need to know.
This is the minority position.
The courts which have adopted the minority rule are divided
concerning whether the jury should consider the physician's
26
disclosure from a subjective or objective point of view.
Subjectively, the jury would determine whether the plaintiff
in the particular case would probably have 27
submitted to
treatment if the disclosure had been made.
The objective
test consists of a determination by the jury of what a
reasonably prudent person in the plaintiff's position would
have decided.
28
The objective minority view is probably best illustrated by
the 1972 United States District of Columbia Circuit Court
Hooper / page 8
of Appeals case of Canterbury v. Spence.
152 The Canterbury
court stated:
The patient's right of self-decision shapes
the boundaries of the duty to reveal. The
right can be effectively exercised only if
the patient possesses enough information to
enable an intelligent choice. The scope of
the physician's communications to the
patient, then, must be measured by the
patient's need, and that need is the information material to the decision. Thus, the
test for determining whether a particular
peril must be divulged is its materiality
to the patient's decision:
all risks potentially affecting the decision must be
unmasked. And to safeguard the patient's
interest in achieving his own determination
for treatment, the law must itself set the
standard for adequate d i s c l o s u r e . 3 0
In other words, the objective minority view or the "reasonable
man" view requires that the physician must disclose all risks
that would be material to a reasonable, prudent person in the
patient's position.
The majority in Canterbury held that law,
not medical custom, must define the standard of disclosure
and that the standard should be based on what the patient
needs to know.
Respect for the patient's right of self-
determination demands an external standard set by law for
physicians rather than a standard over which the physicians
have control.
31
The court, however, rejected a subjective
standard requiring disclosure of risks whenever a particular
32
patient would have deemed the risks significant.
In
adopting an objective standard the court held that disclosure
is required whenever a reasonable person, in the patient's
C034?
Hooper / page 9
position, would have attached significance to the risk in
deciding whether to forego the proposed treatment.
33
The court went on the point out that the particular topics
that the physician must communicate are the inherent and
potential hazards of the proposed therapy, alternatives to
such treatment, if any, and results likely to occur if the
patient remains untreated.
34
There is no obligation on the
part of the physician to communicate dangers of which
35
persons of average sophistication are aware.
Whenever
there is a question of whether disclosure should have been
made by a physician, the determination is to be made by
the finder of facts, which is ordinarily the jury.
The Canterbury court commented on the need for medical
experts, noting that medical facts are for medical experts
but that other facts are for any witness, expert or not,
having sufficient knowledge and capacity to testify to them.
The majority emphasized that a lay witness may competently
establish a physician's failure to disclose, a patient's
lack of knowledge, and the risks and adverse consequences
36
following treatment.
Thus, under the objective minority
view, expert witnesses are unnecessary to show the materiality
of risks to the patient's decision on treatment or to the
reasonably expected effect of the disclosure of risks on
C03'I?
Hooper / page 10
that patient's decision.
There is still one situation under
the minority view which does require the testimony of experts.
The court in Wilkinson v. Vesey
37
stated that either side
must still introduce expert testimony to explain difficult
. 38
concepts.
As Canterbury represents the objective minority view, Scott
39
v. Bradford,
a 1979 Oklahoma Supreme Court decision, illus-
trates the subjective minority view.
Rejecting the medical
paternalism of Karp jurisdictions and refusing to apply the
reasonable man view of Canterbury,
40 the Scott court adopted
the "full" disclosure standard.
Hence, under Scott, the
fact finder determines what risks were or were not material
to the "particular plaintiff-patient's 41
decision" with respect
to treatment received or not received.
In short, Scott
goes one step further than the reasonable patient standard.
It requires that the physician's duty of disclosure be
measured by the subjective understanding of the individual
patient.
Now that the two tests for informed consent have been examined
we must turn to one last important element:
00344
causation.
Hooper / page 11
C.
Causation
Under either the majority or minority view, causation must
42
still be proved as an element of a negligence action.
A
causal connection exists only when disclosure of significant
risks incidental to treatment would have resulted43 in the
patient deciding against the proposed treatment.
This is
true because it is obvious that a patient has no complaint
if he would have submitted to the therapy
notwithstanding
44
awareness that the risk was one of its perils.
The very
purpose of the disclosure rule is to protect the patient
against consequences that, 45
if known, would have been avoided
by foregoing the treatment.
As with the minority view the question arises as to whether
causality should be determined subjectively or objectively.
Under the subjective test, the issue would be resolved
according to whether the fact finder believes the patient's
testimony that he would not have agreed to treatment if he
46
had known of the danger that later ripened into injury.
Under the objective standard, as adopted in Canterbury,
causality would be resolved in terms of what a prudent
person in the patient's position would have decided47 if he
had been informed of all of the significant risks.
Hooper / page 12
The objective standard seems to be preferred by the courts
because it does not depend on the patient's self-serving
testimony as to what hypothetically would have been decided
if all material risk had been disclosed and also because it
is more easily rebutted by the defendant's evidence than
48
is the subjective standard.
The subjective view, however,
enables the jury to consider the patient's individual circumstances (i.e. personal beliefs, experiences, etc.) in
deciding whether the patient would have made the same decision
49
had the doctor adequately informed the patient of the risks.
D.
Majority vs. Minorities:
The Distinctions and Criticisms
Neither the Karp, Canterbury nor Scott tests require that the
doctor's duty to disclose be contingent on a request for information by the patient.
All three views hold that a physician,
absent a privilege not to disclose, has an affirmative duty
to inform the patient in order that the latter may make an
informed and knowledgeable choice.
There seems to be consensus
also, that there is no need to advise a patient of dangers or
risks of which he is already aware, or those of which the
physician is unaware.
However, there might be a cause of
action for not disclosing what the physician should have
50
known.
Additionally, there is no need to give the patient a
mini-medical course, but rather, only reasonable explanations
"in nontechnical terms as to what is at stake:
003-16
the therapeutic
Hooper / page 13
alternatives open to him, the goals expected to be achieved
and the risks that may ensue from [a] particular treatment
or no treatment."
51
Although there is accord that a showing of the breach of the
physician's duty must be born by the plaintiff-patient, there
is still discord between the approaches in respect to the
creation of that duty.
In those jurisdictions following
Karp, the physician's duty is established by the introduction
of expert testimony, as to what a reasonable medical doctor
in a similar community and of the same school of thought would
have disclosed.
Canterbury jurisdictions have dispensed with
the need for expert testimony and the duty is measured by what
the average reasonable patient would have deemed material in
assenting to the treatment or nontreatment.
Scott goes one
step further and requires that the physician's duty of disclosure be measured by the subjective understanding of the
individual patient.
Aside from the similarities and differences between the views
there are major criticisms leveled at both approaches.
At present three major problems are presented by the majority
view.
First, is the ineffectiveness of a standard set by the
medical profession itself.
52
Much has been written about the
Hooper / page 14
inability or the unwillingness of the medical profession to do
53
an adequate job of policing within the profession.
There
is very little organizational effort aimed at self-regulation
in the medical field,
54 and what does exist is, for the most
part, ineffective.
Second, it has become increasingly
evident that a consistent medical standard does not actually
55
exist in a community of physicians.
The majority rule
relies on proof of such a standard, yet with the growing
variety of treatments and experimental procedures available
there is increasing disagreement among physicians
concerning
56
which treatments or procedures are superior.
It is also
highly doubtful that a community of physicians would agree on
the specific items to be disclosed concerning a particular
procedure or treatment.
In short, this view overlooks the
fact that there can be no recovery by the patient 57
if there is
no existing medical standard (custom) to disclose.
Finally,
because the majority position requires expert testimony, the
plaintiff-patient is faced with the burden of overcoming the
58
"conspiracy of silence."
It is an established fact that
59
physicians are reluctant to testify against each other.
As a result, many meritorious cases have been dismissed due 60
to the inability of the plaintiff to obtain such testimony.
Therefore, the requirement of expert testimony may place an
almost insurmountable burden on the plaintiff-patient.
Hooper / page 15
Opponents to the minority view have raised two objections to
its application.
First, it has been suggested that the
minority approach would require too much time from a busy
doctor by encouraging increased communication between the
61
physician and the patient.
This objection seems short
sighted in that while more time may be needed to make adequate
disclosure, it should be worth the extra time to the prudent
physician in view of the increasing number of malpractice
suits. 62
Secondly, some believe that providing reasonable
disclosure to a patient produces excessive anxiety and might
63
possibly discourage submission to a needed surgery.
Again,
this objection has little merit since patients who have no
interest in complete risk disclosure may waive it and the
physician cannot be held
64 liable for failure to provide
adequate information.
In summary, the majority position is one that favors the
paternalistic belief that the doctor knows best and that
good medicine must therefore be good law.
On the other
hand, the minority position respects the patient's right
of self-determination.
The three tests (Karp, Canterbury,
and Scott) can be described as the physician in a similar
community of the same school of thought versus the average
reasonable patient's material needs versus the individual
patient's material needs.
C03-19
Hooper / page 16
By now, it must be fairly obvious that the author tends to
favor the minority view.
However, this paper has a primary
purpose of informing and not necessarily persuading.
Yet it
should be noted that Canterbury (the objective minority
approach) is predicted to become the majority rule across
65
the nation.
With this in mind and with the two approaches
clearly defined we can now turn to the standard adopted by
Texas courts.
Hooper / page 17
III.
STATUS OF TEXAS LAW
The standard of disclosure currently applied in Texas was
66
adopted in the 1967 supreme court case of Wilson v. Scott.
In Wilson the duty of the physician to disclose was described
in language emphasizing the patient's need to know.
The
court stated:
Physicians and surgeons have a duty to make
a reasonable disclosure to a patient of
risks that are incident to medical diagnosis
and treatment. This duty is based upon the
patient's right to information adequate for
him to exercise an informed consent to or
refusal of the
procedure.67
Yet, when considering the standard to be used to determine
whether the doctor fulfilled his duty to disclose adequately,
the court clearly adopted the majority rule:
We conclude therefore that the plaintiff
had the burden to prove by expert
medical evidence what a reasonable
medical practitioner of the same school
and same or similar community under the
same or similar circumstances would
have disclosed to his patient about the
risks incident to a proposed diagnosis
or treatment.
Although much of the court's language sounds like an endorsement of the minority view, the court retreated from its initial
language in discussing the doctor's duty to disclose and fell
back upon the majority standard.
With this knowledge we will
now explore the requirement for consent in Texas.
Hooper / page 18
A.
Requirement for Consent
In Texas, a physician must have a patient's informed consent
before any treatment can be rendered or he will be liable for
damages.
69
This rule is tempered by the "emergency exception"
which allows the rendering of emergency medical care without
70
the express consent of the patient.
This "emergency
exception" is a form of implied consent and depends on two
conditions:
that the patient be in danger of losing
life or
71
limb and that the patient be unable to consent.
The
"emergency exception" does not allow, however, the rendering
of care against the patient's wishes.
If the patient refuses
care the health care provider must
72 petition the court for
permission to treat the person.
A second exception to the
rule set out above is when the patient is a minor or lacks
73
the capacity to consent.
If neither of the two exceptions
are applicable and treatment is performed without the proper
informed consent of the patient, an action of battery74may be
maintained based on the lack of legal authorization.
This brings up the question of who may consent to the care of
a patient in Texas.
In the case of an adult, only the patient
75
may consent to medical care.
The consent of relatives and
spouses is totally ineffective, unless the patient has 76
specifically authorized that person to be their agent.
If
the patient wishes to appoint an agent to consent to medical
COS)?-
Hooper / page 19
care, then the proper form is a power of attorney explicitly
77
delegating the right to consent to medical treatment.
This
power of attorney is valid until there is a court determination
of incompetency.^
One of the most common consent problems involves demands that
a husband consent before medical care is rendered to his wife.
In Gravis v. Physicians & Surgeons Hospital
79
the Texas
Supreme Court stated that the relationship of husband and wife
80
does not of itself make one spouse the agent of the other.
The court held that the husband could not legally consent to
his wife's operation since there was no evidence that the
81
husband was authorized by his wife to consent to the operation.
Another situation in which consent by a patient is often held
to be invalid occurs when the patient is a minor.
As a general
rule, consent by a minor in Texas does not give his physician
82
the right to proceed with treatment.
The Texas Family Code
establishes who may consent to medical care for a minor.
Parents, guardians, and managing conservators
have full power
83
to consent to medical care for minors.
A parent who is a
possessory conservator apparently has the power to consent only
while in possession of the child, and then only during an
emergency involving an
84 immediate danger to the health and
safety of the child.
Grandparents, adult brothers or sisters,
adult aunts or uncles, educational institutions with prior
0035*3
Hooper / page 20
written authorization, courts, and any adult with a proper
written authorization, may consent to medical care for a
minor if the person with full power is unavailable and has
not given notice of any limitations upon who may consent to
care for the minor.
85
In addition, the Family Code provides
that a minor may consent to his or her own medical treatment
under six specific instances:
(1) If the minor is on active
duty in the Armed Services; (2) If the minor is 16 or older,
manages his/her own finances, and lives apart from his/her
parents, guardian, or managing conservator; (3) If the minor
consents to the treatment of any disease which is required
to be reported under the law; (4) If the minor consents to
care related to her pregnancy other than abortion; (5) If
the minor consents to care related to drug abuse, or; (6) If
the minor is 18 years of age or older and consents to the
donation of blood.
86
The health care provider may rely on
the written representation by the minor that he or she falls
into one of these categories.
87
However, if the care provider
has notice that the representation is false then the immunity
would probably be breached.
88
Now that the standard of disclosure has been set forth and
the rules of who can legally consent have been examined, we
can now discuss the considerations in determining whether
the consent given is an "informed" one.
Hooper / page 21
B.
What Composes "Informed" Consent:
The Duty and Scope of
Disclosure
Concerning the physician's duty to disclose, the court in
Wilson v. Scott
89
held that the doctor must make a reasonable
disclosure to a patient of risks that are incident to medical
90
diagnosis and treatment.
Recognizing that in some medical
procedures the dangers are greater than in other procedures
the court further stated that the nature and extent of
91
disclosure depends upon the problem as well as the patient.
Concerning the scope of the physician's duty to disclose, the
court quoted a passage from Aiken v. Clary,
92
which states
that a reasonable medical practitioner:
Would consider the state of the patient's
health, the condition of his heart and
nervous system, his mental state, and
would take into account, among other things,
whether the risks involved were mere remote
possibilities or something which occurred
with some sort of frequency or regularity.
This determination involves medical judgement
as to whether disclosure of possible risks
may have such an adverse effect on the patient
as to jeopardize success of the proposed
therapy, no matter how expertly performed.
With these considerations in mind, the court set out the Texas
rule that the patient must prove by expert evidence what a
reasonable medical practitioner of the same school and same
or similar community under the same or similar circumstances
would have disclosed to his patient about the risks incident
to a proposed diagnosis or treatment.
94
Additionally, the
Hooper / page 22
patient must show that the physician departed from that
standard, that such departure was the proximate cause of
the patient's damages, and that the patient actually
suffered damages.^ 5
The courts commonly consider four factors in their determination of whether a doctor has breached his duty to disclose:
(1) The nature or degree of risks, harm or adverse result;
(2) The frequency or percentage of cases in which such
risk, harm or adverse result is seen; (3) The probable effect
of the procedure or treatment on the patient's health or
well-being; and (4) The probable effect of disclosure on the
patient's mental health or well being.
96
At this point it must be pointed out that a problem sometimes
arises concerning the responsibility to disclose risks of a
procedure to be performed by someone other than the attending
physician.
This problem usually arises when either a
consulting doctor or an assistant is involved in the treatment
97
procedure.
In Bell v. Umstattd
the court stressed that it
would be "unreasonable and undesirable to place a burden of
full and complete disclosure upon each and every specialist
as to the specific methods intended to be used in an operation
and all of the
possible risks involved in each step of the
no
operation."
In the situation involving an assistant the
court in Weiser v. Hampton
99
held that a resident doctor was
Hooper / page 23
under no duty to gain the patient's consent since he was
assisting the surgeons, under their direction and control,
and had no independent doctor-patient
relationship. 1 0 0
More significantly, the court held that consent given to a
surgeon must be construed to include consent for him to
secure such assistance furnished by the hospital as he may
require. 1 0 1
As such, Texas seems to follow the rule that in
both situations the patient's authority need not be obtained
since the operating surgeon is acting as the patient's agent
in this regard.
It seems to follow, however, that since the
operating surgeon is so empowered to obtain consultants and
assistants, and has the duty to obtain the patient's general
consent, the duty to adequately disclose may fall on him
alone.
One last Texas case should be noted in regards to a physician's
duty to disclose.
Although a physician's past experiences
would have some bearing on his duty to disclose, the court in
Anderson v. Hooker
102
held that a doctor is not required to
disclose that a prior patient has suffered a specific adverse
result.
103
Moreover, the court stated that "what" the doctor
should disclose does not depend on a standard set by the
courts, but by the medical practitioners of the area.
104
Accordingly, the patient has the burden to prove through
105
medical testimony what that standard is.
In short, Anderson
seems to stand for the proposition that the question of
ngy^rj*1!
Vi*
i
Hooper / page 24
informed consent turns on the ratio between good and adverse
results experienced by the medical profession and doctors
generally.
For example, if medical evidence were to show
that in ten percent of the cases an adverse result such as
death occurs, then the duty would be upon the doctor to
advise of that adverse result despite the fact that he might
have done a hundred operations without a single death.
Once it has been established that a duty to disclose exists,
the next question to be resolved is to determine the scope
of disclosure required in Texas.
In other words, what
substantive topics must the doctor discuss with the patient.
At present, the courts have done little to clarify this
question, however, a few general rules can be set forth.
Most courts agree that there is no necessity to discuss risks
of a particular procedure commonly known to all, or those of
such a low probability and minimal effect as to be negligible.
It should be noted, however, that the duty to disclose increases
with the seriousness of the possible harm despite the fact that
107
the probability of occurrence is very low.
Finally, a doctor
should disclose the inherent and potential risks of a proposed
treatment, in addition to discussing the alternatives to treat- 108
ment and the probable results if the patient remains untreated.
Hooper / page 25
Along with these general rules a few specific cases should
be examined which have further expanded the scope of
109
disclosure.
In Canterbury v. Spence
the United States
Court of Appeals for the District of Columbia noted that
some courts have required "full" disclosure, but the majority
have applied tests framed with reference to prevailing
fashion within the medical profession. 1 1 0
The court declared
that a physician should inform a patient of the inherent and
potential hazards of the proposed treatment, the alternatives
to treatment, and the probable results if the patient remains
untreated. 1 1 1
In discussing the degree of harm and the
frequency that such harm occurs, the court stated that the
incidence of injury and the degree of harm threatened are
factors that contribute
112 significantly to the dangerousness of
a medical technique.
The court further pointed out that
an extremely small chance of death or serious disablement may
well be significant, and a potential disability that
dramatically outweighs the potential 113
benefit of treatment may
require discussion with the patient.
In addition to Canterbury two Texas cases shed some light on
114
the scope of disclosure.
In the case of Rea v. Gaulke
the court demonstrated that it is not necessary for the
patient to be told of all the remote possibilities of harm. 1 1
Furthermore, in the case of Marsh v. Arnold
CC35?
the court held
Hooper / page 26
that technical explanations were not necessary or appropriate
in all circumstances and that in deciding upon whether to
make such a disclosure the physician must weigh the results
117
he is attempting to obtain against the risk of harm.
C. The Privilege of Nondisclosure
Courts have traditionally recognized several limitations on
the physician's general duty to disclose.
There is no duty
to disclose when the situation is an emergency requiring
118
immediate action for the preservation of life or limb.
This first exception has been previously discussed in
Section III. A. on page 18 of this paper.
The second major exception is made for the physician's
"therapeutic privilege."
If the doctor determines that full
or even partial disclosure is not in the patient's welfare,
a well-recognized privilege to withhold the information
arises.119
Indeed, in Watson v. Clutts 1 ^ 0 the court held
that a physician has two duties:
to do what is best for his
patient and to make adequate disclosure.
121
The court held
that in situations where these two duties conflict, the
primary duty of doing what is best for the patient must
122
prevail.
In exercising this privilege the doctor must
consider if the information which might be disclosed would so
upset the patient mentally that it would be detrimental to
Hooper / page 27
his health and well being.
123
The therapeutic privilege can
be quite broad and, unless carefully limited, has the
potential of swallowing up the duty to disclose.
124
Other exceptions to the disclosure requirement also exist.
A
privilege of nondisclosure is recognized when an average
patient would have been aware of the risks
125
or when the
physician was unaware of the risk at the time disclosure was
made.
126
Finally, no informed consent is required when the
patient has been made aware of the possibility of harm, but
has chosen to forgo disclosure of risks.
127
Under any of the aforementioned circumstances, a physician is
privileged to not inform his patient of the medical diagnosis,
proposed treatment, risks or alternatives.
Beyond these
disclosure limitations, however, a physician will not be
protected against his failure to adequately inform.
D.
Proximate Cause
In order for the patient to recover in Texas under the doctrine
of informed consent a causal relationship between the physician'
failure to disclose information and damage to the patient must
128
be shown.
The question now arises as to whether Texas has adopted the
subjective or objective view of causality as discussed in
Hooper / page 28
Section II. C. on page 11 of this paper.
In Forney v.
129
Memorial Hospital,
a Texas Court of Civil Appeals
officially endorsed the objective view of causation.
The
court stated that in order to hold the physician liable
the jury must find that a reasonable and prudent person
under the same or similar circumstances who had been
informed of the risks would have declined the proposed
130
procedure.
Prior to Forney, the standard used for
causation in Texas was not well-developed, though the
adoption
of the
view had been predicted by the
court in Karp
v. objective
Cooley. 131
Thus, in order for a plaintiff-patient to recover damages
under the doctrine of informed consent in Texas, he must
prove by expert testimony the following elements:
1.
What a reasonable medical practitioner
of the same school and same or similar
community, under the same or similar
circumstances would have disclosed to
his patient about the risks incident
to a proposed diagnosis or treatment;
2.
That the physician departed from that
standard;
3.
Causation (objective); and
4.
Damages
1 3 2
CC381
Hooper / page 29
It is evident that the status of Texas law in the field of
informed consent is at best complex and at worst vague and
obtuse.
In an attempt to simplify and clarify the law on
this subject the Texas legislature enacted the Medical
133
Liability and Insurance Improvement Act of Texas.
It is
this Act we will now examine for the final link in Texas law
on informed consent.
E.
The Texas Medical Liability and Insurance Improvement Act
Subchapter F of the Medical Liability and Insurance Improve134
ment Act (the Act)
refers to causes of action against
physicians and health care providers for their failure to
make reasonable disclosures of risks and hazards incident to
medical care or surgical procedures.
Under section 6.02 of the Act, the physician's general duty
is to disclose the risks or hazards that could influence a
reasonable person in making a decision to give or withhold
consent to a proposed procedure.
135
The legislature in
effect codified the objective standard of causation which was
136
set out in Forney v. Memorial Hospital.
Under the Act the
plaintiff still must prove that a reasonable person in his
position would not have undergone
137 the procedure had all
material risks been disclosed.
Thus, the Act will have
Hooper / page 30
little impact on the proof of causation.
The Act will, how-
ever, greatly affect the extent of disclosure required.
Under the Act, the Texas Medical Disclosure Panel, which
consists of three attorneys and six physicians, is charged
with the responsibility of determining which "risks or
hazards" should be disclosed, and the extent of the
disclosure.
138
The Panel has the staggering task of
identifying and examining all medical treatments and surgical
procedures in which physicians and health care providers may
139
be involved.
The Panel must then determine which treat-
ments and procedures require disclosure and those which do
For those treatments and procedures on the required disclosure
list, the degree of disclosure required and the form of the
disclosure are to be established.
141
The lists with written
explanations of the degree and form of the required disclosure
142
are to be published in the Texas Register.
The lists are
to be supplemented with newly developed medical treatments and
surgical procedures, and by inference, the Panel may alter
143
or modify disclosure requirements on the original lists.
These lists and explanations provide the basis for the duty
of disclosure of physicians and health care providers in Texas.
Hooper / page 31
In December 1978, after more than a year of hearings and
deliberations, the Texas Medical Disclosure Panel published
its first set of proposed disclosure guidelines in the Texas
144
Register.
The proposed rules consist primarily of two
lists of medical procedures:
List A includes those pro-
cedures and their risks for which full disclosure is
required, while those procedures requiring no disclosure are
on List B. 145 List A contains eleven major categories:
146
anesthesia and ten systems (i.e., digestive, ear, etc.).
For List A, the Panel requires the use of a consent form also
published in the proposed regulations.
147
List B contains
fourteen major categories of medical procedures.
148
The two
lists contain only surgical procedures and are merely a first
step toward meeting the legislative directive.
149
Pursuant to the statute, the physician or health care provider
has a duty to disclose the risks and hazards of a medical or
surgical procedure on the required disclosure list (List A)
to the patient or to an authorized representative prior to
150
obtaining the patient's consent.
Consent is considered
effective under the Act when the risks and hazards involved
in the procedure as specified in List A are enumerated in
writing and signed by the patient, or the person
authorized
151
to consent for the patient, and one witness.
Such consent
is admissable in evidence and creates a rebuttable presumption
that the physician or health care provider has complied with
Hooper / page 32
the statutory disclosure requirements.
152
Likewise, failure
to disclose information about a medical treatment for which
disclosure is not required (List B ) is admissable in evidence
and also creates a rebuttable presumption that the physician
153
or health care provider was not negligent.
Ironically,
the effect of not disclosing a procedure on List B is to
raise the presumption that proper disclosure was made.
Both of the above presumptions are included in the charge to
154
the jury.
The failure of a physician or health care
provider to disclose risks and hazards for a procedure on
List A is admissable in evidence
and creates a rebuttable
presumption of negligence. 155 This presumption must always
156
be included in the charge to the jury, even if rebutted.
Exceptions, however, exist to this presumption of negligence.
Failure to disclose may not be considered negligent in case
of an emergency or if there were some reason why it was not
"medically feasible" to make
157 a disclosure that otherwise
would have been required.
Finally, if the treatment or
procedure is not found on either list, then the statute does
not apply, and the common law rules apply.
158
After the reader has had a chance to digest all of these
regulations he should reflect upon the fact that this Act
159
attempts to bring "certainty and predictability"
vague area of the law.
to this
Indeed, at a time when the national
Cifj,fyr*o
ti J V V
Hooper / page 33
trend is toward greater disclosure to patients based on their
need to know, the Texas legislature has stampeded toward the
pol^r-opposite.
Some criticisms against the Act are as follows:
First, the
Act does not rid Texas of the overly broad "therapeutic
privilege."
Under g 6.07(a)(2) a physician or health care
provider will be able to avoid disclosure of risks on List A
if it is determined that disclosure is not "medically
160
feasible."
This privilege is extremely broad and gives
the physician tremendous leeway to use the particular
characteristics of the patient or the situation to rebut the
presumption of negligence.
Second, the Act does nothing to
resolve the problem of allowing physicians to set their own
standards.
Six of the nine members of the Medical Disclosure
Panel charged with determining the Texas standard are
physicians, and most of the input received by the Panel has
been from individual health professionals or from medical
161
groups.
Thus, the Texas standard will continue to be set
by physicians for physicians.
Third, disclosure of the risks
and hazards of a proposed procedure is not the only element
of informed consent.
Disclosure
of alternative procedures is
162
also of great importance.
The Act completely neglects to
address alternative procedures.
This is a serious flaw because
an understanding of alternatives to proposed treatment is just
as important to a patient as an understanding of the risks and
Hooper / page 34
hazards involved.
Finally, there is the problem created by
totally eliminating expert testimony.
Experts are no longer
necessary under the Act because the Panel's regulations will
serve this purpose.
Under the Texas common-law standard,
the expert witness considered all the circumstances in
determining whether disclosure should have been made.
This
will now be eliminated by the Act because the only evidence
that a patient can use to rebut a presumption that a physician
has properly disclosed risks is evidence that attacks the
validity of the consent itself.
The individual circumstances
may no longer be considered because all required disclosure
elements are predetermined by the list.
does pose itself:
However, one advantage
the "conspiracy of silence" problem under
the common-law has been somewhat nullified.
In short, the Texas legislature has not achieved its goal of
simplifying the law of informed consent.
Indeed, the only
result so far has been to muddy unclear waters a little bit
more.
Hooper / page 35
CONCLUSION
Few areas of the law engender as much controversy as the
conflicts between patients and physicians.
This is very
evident today from the prolific number of malpractice suits
being brought before the courts.
In many situations, the
conflicts can be ameliorated by informing both sides of
their rights and duties, and encouraging the flow of information.
This process will give the patient a chance to
voice, and perhaps remedy, their complaints, and will protect the health care provider from litigation by clearly
establishing that the patient knew and assumed the risks
of treatment.
One of the most common fears expressed by the medical
profession is that if a patient is told all possible risks
to a procedure, he will decline it.
Recent studies have
demonstrated the fallacy of this belief by proving that
only a small fraction of patients rejected treatment after
164
being informed of the risks involved.
Besides, as was
pointed out at the beginning, it is the patient who bears
the risk of all medical procedures and as such it should
be his perogative to decide what risks to accept even though
the doctor believes the choice to be in error.
Hooper / page 40
By establishing better communications between himself and
his patient the physician will inevitably improve his
rapport with his patient and should noticeably diminish
the incidence of doctor-patient antagonism.
A good
prescription for the physician to remember is that shared
decision-making is both good law and good medicine.
0B370
FOOTNOTES
1.
See Riskin, Informed Consent:
4
Looking for Action,
U- H I . L.F. 580, 592 (1975).
2.
Scott v. Bradford, 606 P.2d 554, 557 (Okla. 1979).
3.
Schloendorff v. Society of New York Hospital, 211 N.Y.
125, 129-30, 105 N.E. 92, 93 (1914).
4.
See 1 U.S. Dep 1 t. of Health, Education and Welfare,
Medical Malpractice:
Report of the Secretary's
Commission on Medical Malpractice 29 (1973).
5.
154 Cal. App.2d 560, 317 P.2d 170 (1957).
6.
Id. at 578.
7.
Katz, Informed Consent - A Fairy Tale?
Law's Vision,
39 U. Pitt. L. Rev. 137 (1977).
8.
464 F.2d 772, 780 (D.C. Cir. 1972).
9.
Id.
10.
Note, Medical Malpractice, Towards a Viable Disclosure
Standard for Informed Consent, 32 Okla. L. Rev. 868,
888 (1979).
f
ViJ.iJ f
Hooper / footnotes 2
11.
Comment, The Effect of the Texas Medical Liability and
Insurance Improvement Act On the Texas Standard for
Medical Disclosure, 17 Hous. L. Rev. 615, 616 (1980)
[hereinafter cited as Effect].
12.
Salgo v. Leland Stanford Jr. University Board of
Trustees, 154 Cal. App. 2d 560, 317 P.2d 170 (1957).
13.
Wilson v. Scott, 412 S.W.2d 299 (Tex. 1967).
14.
Gravis v. Physicians & Surgeons Hospital, 415 S.W.2d
674, 678-79 (Tex. Civ. App.-San Antonio 1967), rev'd
on other grounds, 427 S.W.2d 310 (Tex. 1968).
15.
493 F.2d 408 (5th Cir. 1974).
16.
Id. at 419 n.ll.
17.
See Collins v. Meeker, 424 P.2d 488, 494-95 (Kan. 1967).
18.
493 F.2d 408, 419 n.ll (5th Cir. 1974).
19.
Wilson v. Scott, 412 S.W.2d 299, 303 (Tex. 1967).
20.
Gravis v. Physicians k Surgeons Hospital, 415 S.W.2d
674, 679 (Tex. Civ. App.-San Antonio 1967) rev'd on
other grounds, 427 S.W.2d 310 (Tex. 1968).
21.
Anderson v. Hooker, 420 S.W.2d 235, 238-39 (Tex. Civ.
App.-El Paso 1967, writ ref'd n.r.e.).
! ft*
Hooper / footnotes 3
22.
Effect, supra note 11, at 618.
23.
See Riedisser v. Nelson, 111 Ariz. 542, 544-45, 534
P.2d 1052, 1054-55 (1975); Coleman v. Garrison, 327
A.2d 757, 762-63 (Del. 1974), aff'd on other grounds,
349 A.2d 8 (Del. 1975).
24.
See Hamilton v. Hardy, 37 Colo. App. 375, 549 P.2d
1099, 1104-05 (1976); Martin v. Bralliar, 36 Colo.
App. 254, 540 P.2d 1118, 1121 (1975).
25.
Canterbury v. Spence, 464 F.2d 772, 783 (D.C. Cir. 1972);
Cobbs v. Grant, 104 Cal. Rptr. 505, 513-14 (1972).
26.
See Riskin, Informed Consent:
4
U» H I -
Looking for Action,
L.F. 580, 589 (1975); Note 71 Dick. L. Rev.
675, 679 (1967).
27.
Scott v. Bradford, 606 P.2d 554 (Okla. 1979); Gray v.
Grunnagle, 223 A.2d 663, 674 (Pa. 1966).
28.
Canterbury v. Spence, 464 F.2d 772, 787 (D.C. Cir. 1972).
29.
Id.
30.
Id. at 786.
31.
Id. at 784.
32.
Id. at 787.
33.
Id.
00373
Hooper / footnotes 4
34.
Id. at 787-88.
35.
Id. at 784.
36.
Id. at 792.
37.
110 R.I. 606, 609, 295 A.2d 676, 688 (1972).
38.
Id.
39.
606 P.2d 554 (Okla. 1979).
40.
Id. at 559.
41.
Id. at 558.
42.
See Shetter v. Rochelle, 2 Ariz. App. 358, 367, 409
P.2d 74, 83 (1965); Natanson v. Kline, 186 Kan. 393,
406, 350 P.2d 1093, 1109, modified on rehearing, 187
Kan. 186, 354 P.2d 670 (1960); Note, Advise and
Consent in Medicine:
A Look at the Doctrine of
Informed Consent, 16 N.Y.L.F. 863, 886 (1970).
43.
Canterbury v. Spence, 464 F.2d 772, 790 (D.C. Cir.
1972).
44.
Id.
45.
Id.
46.
Id., citing Plante, An Analysis of "Informed Consent",
36 Fordham L. Rev. 639, 666-67 (1968).
-f
W J
1
Hooper / footnotes 5
47.
Id. at 791.
48.
Waltz & Scheuneman, Informed Consent to Therapy,
64 Nw. U.L. Rev. 628, 646-48 (1970); Note, Informed
Consent - A Proposed Standard for Medical Disclosure,
48 N.Y.U. L. Rev. 548, 550 (1973).
49.
Annas, Avoiding Malpractice Suits through the Use of
Informed Consent, 1977 Legal Med. Ann. 219, 223.
50.
Canterbury v. Spence, 464 F.2d 772, 787 n.84 (D.C. Cir.
1972).
51.
Id. at 782 n.27.
52.
See Cooper v. Roberts, 286 A.2d 647, 650 (Pa. Super. Ct.
1971); Comment, A New Standard for Informed Consent in
Medical Malpractice Cases - The Rule of the Expert
Witness, 18 St. Louis U.L.J. 256, 260 (1973).
53.
See Hagman, The Medical Patient's Right to Know:
Report
on a Medical-Legal-Ethical, Emperical Study, 17 U.C.L.A.
L. Rev. 758, 813 (1970).
54.
Raskin, Informed Consent:
Looking for Action 4 U. 111.
L.F. 580, 599 (1975).
55.
Cobbs v. Grant, 104 Cal. Rptr. 505, 514 (1972);
Wilkinson v. Vesey, 295 A.2d 676, 687 (R.I. 1972);
Mason v. Ellsworth, 474 P.2d 909, 918 (Wash. Ct. App. 1970).
06375
Hooper / footnotes 6
56.
Stewart v. Long Island College Hosp., 296 N.Y.S.2d 41, 48
(Sup. Ct. 1968), aff'd and modified, 313 N.Y.S.2d 502
(Sup. Ct. App. Div. 1970), aff'd, 332 N.Y.S.2d 640 (1972).
57.
Canterbury v. Spence, 464 F.2d 772, 783 (D.C. Cir. 1972);
Cobbs v. Grant, 104 Cal. Rptr. 505, 513-14 (1972);
Wilkinson v. Vesey, 295 A.2d 676, 688 (R.I. 1972).
58.
H. Lewis & M. Lewis, The Medical Offenders 301 (1970).
59.
Belli, An Ancient Therapy Still Applied:
The Silent
Medical Treatment, 1 Vill. L. Rev. 250, 251 (1956);
Comment, A New Standard of Informed Consent in Medical
Malpractice Cases - The Role of the Expert Witness,
18 St. Louis U.L.J. 256, 260-62 (1973).
60.
Eg. George v. Travelers Ins. Co., 215 F.Supp. 340, 345
(E.D. La. 1963), aff'd per curiam sub nom., George v.
Phoenix Assurance Co., 328 F.2d 430 (5th Cir. 1964);
Green v. Hussey, 262 N.E.2d 156, 161 (111. Ct. App.
1970).
61.
Butler v. Berkeley, 213 S.E.2d 571, 581 (N.C. Ct. App.
1975); see Riskin, Informed Consent:
4
Looking for Action,
U- H I • L.F. 580, 598; Note, Restructuring
Consent:
Informed
Legal Therapy for the Doctor-Patient
Relation-
ship, 79 Yale L.J. 1533, 1575 (1970).
62.
Beloud, The Growing Importance of Informed Consent, 8
Lincoln L. Rev. 115, 124 (1973).
Of 376
Hooper / footnotes 7
63.
Bucklin, Informed Consent:
Past, Present, and Future,
Legal Med. Ann. 203, 212-13 (C. Wecht ed. 1975).
64.
Canterbury v. Spence, 464 F.2d 772, 788-89 (D.C. Cir.
1972).
65.
Perdue, The Law of Texas Medical Malpractice | 9.05 (1975).
66.
412 S.W.2d 299 (Tex. 1967).
67.
Id. at 301.
68.
Id. at 302.
69.
Moss. v. Rishworth, 222 S.W. 225 (Tex. Comm'n App. 1920,
holding approved); Scott v. Wilson 396 S.W.2d 532, 535
(Tex. Civ. App.-San Antonio 1965) aff'd, 412 S.W.2d 299,
302 (Tex. 1967); accord, Anderson v. Hooker, 420 S.W.2d
235, 237-38 (Tex. Civ. App.-El Paso 1967, writ ref'd
n. r. e. ) .
70.
Moss v. Rishworth, 222 S.W. 225, 226 (Tex. Comm'n. App.
1920, holding approved); Gravis v. Physicians and
Surgeons Hospital, 415 S.W.2d 674 (Tex. Civ. App.-San
Antonio 1967), aff'd 427 S.W.2d 310 (Tex. 1968).
71.
C. L. Weigel, Texas Law and Emergency Medicine,
15
72.
S. Tex. L.J. 133, 153 (1974).
A. R. Holder, Medical Malpractice Law, 2nd ed. pp. 14-19
(1978).
n A W
3 £
Hooper / footnotes 8
73.
Moss v. Rishworth, 222 S.W. 225, 226 (Tex. Comm'n. App.
1920); Gravis v. Physicians and Surgeons Hospital, 427
S.W.2d 310, 311 (Tex. 1968).
74.
Farrell, Consent to Medical Care of Minors:
Who Has
Authority in Texas?, 42 Tex. B.J. 25, 26 (1979)
[hereinafter cited as Farrell].
75.
Richards and Rathbun, The Law of Patients Rights In Texas,
44 Tex. B.J. 1059, 1060 (1981) [hereinafter cited as
Richards].
76.
Karp v. Cooley, 493 F.2d 408 (5th Cir. 1974); Wilkinson
v. Stevison, 514 S.W.2d 895, 898 (Tex. 1974).
77.
Richards, E., and Rathbun, K., Patient's Rights Handbook,
Texas Young Lawyers Association
(1980).
78.
Richards, supra note 75, at 1060.
79.
427 S.W.2d 310 (Tex. 1968).
80.
Id. at 311.
81.
Id.; accord, Karp v. Cooley, 349 F.Supp. 827, 835
(S.D. Tex. 1972), aff'd, 493 F.2d 408 (5th Cir. 1974).
82.
Farrell, supra note 74, at 26.
83.
Tex. Fam. Code Ann. § 12.04(6) and | 14.02(b)(5) (Vernon
1975); Tex. Prob. Code Ann. | 229 (Vernon 1956).
Hooper / footnotes 9
84
Tex. Fam. Code Ann. | 14.04(3) (Vernon 1975).
85
Tex. Fam. Code Ann. 1 35.01 and | 35.02 (Vernon 1975).
86
Tex. Fam. Code Ann. § 35.03(a) (Vernon 1975).
87
Tex. Fam. Code Ann. | 35.03(f) (Vernon 1975).
88
Richards, supra note 75, at 1060.
89
412 S.W.2d 299 (Tex. 1967).
90
Id. at 301; accord, Anderson v. Hooker, 420 S.W.2d 235,
238 (Tex. Civ. App.-El Paso 1967, writ ref'd n.r.e.).
91
Wilson v. Scott, 412 S.W.2d 299, 301 (Tex. 1967).
92
396 S.W.2d 668, 674 (Mo. 1965).
93
Wilson v. Scott, 412 S.W.2d 299, 302 (Tex. 1967).
94
95
96
See generally Perdue, The Law of Texas Medical Disclosure,
22
Hous. L. Rev. 1075 (1979).
97
401 S.W.2d 306 (Tex. Civ. App.-Austin 1966, writ dism'd).
98
Id. at 313; accord, Karp v. Cooley, 349 F.Supp. 827,
834 (S.D. Tex. 1972), aff'd, 493 F.2d 408 (5th Cir. 1974).
00379
Hooper / footnotes 10
99.
445 S.W.2d 224 (Tex. Civ. App.-Houston [1st Dist.]
1969, writ ref'd n.r.e.).
100.
Id. at 230.
101.
Id.
102.
420 S.W.2d 235 (Tex. Civ. App.-El Paso 1967, writ
ref'd n.r.e.).
103.
Id. at 239.
104.
Id. at 238.
105.
Id.
106.
Cobbs v. Grant, 104 Cal. Rptr. 505, 514-15 (1972);
Wilkinson v. Vesey, 295 A.2d 676, 689 (R.I. 1972).
107.
Cobbs v. Grant, 104 Cal. Rptr. 505, 515 (1972);
Gravis v. Physicians & Surgeons Hospital, 415 S.W.2d
674, 679 (Tex. Civ. App.-San Antonio 1967), rev'd on
other grounds, 427 S.W.2d 310 (Tex. 1968).
108.
Canterbury v. Spence, 464 F.2d 772, 787-88 (D.C. Cir.
1972); Cobbs v. Grant, 8 Cal. 3d 229, 243, 502 P.2d
1, 10, 104 Cal. Rptr. 505, 514 (1972).
109.
464 F.2d 772 (D.C. Cir. 1972).
110.
Id. at 786.
00330
Hooper / footnotes 11
111.
Id. at 787-88.
112.
Id. at 788.
113.
Ici. , citing Bowers v. Talmage, 159 So.2d 888 (Fla. App.
1963); Scott v. Wilson, 396 S.W.2d 532 (Tex. Civ. App.San Antonio 1965), aff'd, 412 S.W.2d 299 (Tex. 1967).
114.
442 S.W.2d 826 (Tex. Civ. App.-Houston [14th Dist.]
1969, writ ref 1 d n.r.e.).
115.
_Id. at 829.
116.
446 S.W.2d 949 (Tex. Civ. App.-Houston [14th Dist] 1969,
writ ref'd n.r.e.).
117.
Id. at 952.
118.
Gravis v. Physicians & Surgeons Hospital, 415 S.W.2d
674, 679 (Tex. Civ. App.-San Antonio 1967), rev'd on
other grounds, 427 S.W.2d 310 (Tex. 1968).
119.
Wilson v. Scott, 412 S.W.2d 299, 301 (Tex. 1967).
120.
262 N.C. 153, 136 S.E.2d 617 (1964).
121.
Id. at 159, 136 S.E.2d 617 (1964).
122.
Id.
123.
Roberts v. Wood, 206 F.Supp. 579, 583 (S.D. Ala. 1962).
Hooper / footnotes 12
124.
See Canterbury v. Spence, 464 F.2d 772; Riskin, Informed
Consent:
Looking for Action, 4 U. 111. L.F. 580, 587-88
(1975).
125.
Canterbury v. Spence, 464 F.2d 772, 784 (D.C. Cir. 1972);
Wilkinson v. Vesey, 295 A.2d 676, 689 (R.I. 1972).
126.
Small v. Gifford Mem. Hosp., 349 A.2d 703, 706 (1975);
Scaria v. St. Paul Fire & Marine Ins. Co., 227 N.W.2d
647, 653 (1975).
127.
Cobbs v. Grant, 8 Cal.3d 229, 245, 502 P.2d 10, 12, 104
Cal. Rptr. 505, 516 (1972).
128.
Wilson v. Scott, 412 S.W.2d 299, 302 (Tex. 1967); Rea v.
Gaulke, 442 S.W.2d 826, 831 (Tex. Civ. App.-Houston
[14th Dist.] 1969, writ ref'd n.r.e.).
129.
543 S.W.2d 705 (Tex. Civ. App.-Beaumont 1976, writ ref'd
n.r.e.).
130.
Id. at 708.
131.
493 F.2d 408, 422 n.18 (5th Cir. 1974).
132.
Wilson v. Scott, 412 S.W.2d 299, 302 (Tex. 1967);
Gravis v. Physicians & Surgeons Hospital, 415 S.W.2d
674, 679 (Tex. Civ. App.-San Antonio 1967), rev'd on
other grounds, 427 S.W.2d 310 (Tex. 1968).
00332
Hooper / footnotes 13
133.
Medical Liability and Insurance Improvement Act of Texas,
Tex. Rev. Civ. Stat. Ann. art. 4590i, | 1.02(a) (Vernon
Supp. 1977-78) [hereinafter referred to as the Act].
134.
Id. | 6.01-07.
135.
Id. at | 6.02.
136.
543 S.W.2d 705 (Tex. Civ. App.-Beaumont 1976, writ ref'd
n.r.e.).
137.
Id. at 708.
138.
Act, supra note 133, at § 6.03.
139.
Id. at § 6.04(a).
140.
Id.
141.
Id. at | 6.04(b).
142.
Id. at | 6.04(c).
143.
Id. at § 6.04(d).
144.
3 Tex. Reg. 4293 (1978).
145.
Id. at 4293-95.
146.
Id. at 4293-94.
147.
Id. at 4295-96.
00383
Hooper / footnotes 14
148
Id. at 4294-95.
149
Id. at 4293.
150
Tex. Rev. Civ. Stat. Ann. art. 4590i, § 6.05 (Vernon
Supp. 1983).
151
Id. at | 6.06.
152
Id. at § 6.07(a)(1).
153
154
155
Id. at | 6.07(a)(2).
156
Id. at | 6.07(a)(1).
157
Tex. Rev. Civ. Stat. Ann. art. 4590i, g 6.07(a)(2)
(Vernon Supp. 1983).
158
Id. at | 6.07(b).
159
Curran, Informed Consent, Texas Style:
Disclosure and
Nondisclosure by Regulation, 300 New England J. Med.
482, 482 (1979).
160
Tex. Rev. Civ. Stat. Ann. art. 4590i, 1 6.07(a)(2)
(Vernon Supp. 1983).
161
Pickens, Texas Medical Disclosure Panel Seeks Comment on
Informed Consent Proposals, Tex. Med., February, 1979, at 38.
01)384
Hooper / footnotes 15
162.
See Canterbury v. Spence, 464 F.2d 772, 781 (D.C. Cir.
1974); Cobbs v. Grant, 8 Cal.3d 229, 243, 502 P.2d 1, 10,
104 Cal. Rptr. 503, 514 (1972).
163.
Medical Malpractice:
Report of the Secretary's
Commission on Medical Malpractice, DHEW, 1973.
164.
I. Johnsrude, Informed Consent; An Objective Evaluation
of a Possible Solution
(1972).