                                  NO. 07-10-0197-CV

                            IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL C

                                 JANUARY 27, 2011
                          _____________________________

                                BROCK LOVETT, D.C.,

                                                                 Appellant
                                            v.

                                   AARON FELTON,

                                                                 Appellee
                          _____________________________

            FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

         NO. 96,370-E; HONORABLE DOUGLAS WOODBURN, PRESIDING
                        _____________________________

                                     Opinion
                          _____________________________


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

      Brock Lovett, D.C. (Lovett), appeals from a judgment entered against him for

personal injuries suffered by Aaron Felton (Felton), which injuries were allegedly caused

by chiropractic manipulation. Lovett poses five issues for our review. We need only

address that which involves whether he had a duty to inform Felton of the chance of

suffering a dissected vertebral artery from a cervical spine manipulation. We reverse

and render judgment.
      Background

      Felton, a twenty-nine-year-old carpet layer, experienced neck pain and

headaches radiating into his eye after heavy lifting at work. He consulted Lovett on

February 21, 22, and 23, 2006.         In the first two sessions, Lovett performed a

manipulation of Felton’s neck without providing relief.      In the third session, Lovett

performed a more forceful manipulation resulting in a release of the joint, but Felton

immediately began experiencing blurred vision, nausea, dizziness, and a headache.

Lovett called for an ambulance and had Felton transported to the hospital.           Felton

suffered a stroke as a result of a dissection of a vertebral artery. He remained in the

hospital for ten days and did not work for two years. He still suffers from headaches

and double vision.

        A dissection of the artery results in a tear of the lining of the blood vessel. Many

dissections are asymptomatic and resolve on their own. However, on rare occasions,

the artery can swell and narrow the opening or a blood clot forms at the location of the

tear, either of which interrupts the blood supply to the brain causing a stroke. Felton

sued Lovett based on three theories of negligence: 1) Lovett was too forceful in his

third manipulation, thereby causing the artery dissection which resulted in a stroke, 2)

Felton was already suffering a dissection when he came to see Lovett and Lovett

should have recognized it and not performed any manipulations which then resulted in

the stroke, and 3) Lovett failed to inform Felton of the risks and dangers of chiropractic

treatment. The jury rejected the first two contentions and found for him on the third.




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        Informed Consent

        Causes of action for informed consent are medical malpractice cases governed

by §74.101 of the Civil Practice and Remedies Code. Schaub v. Sanchez, 229 S.W.3d

322, 323 (Tex. 2007). That statute provides:

        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 disclose or adequately 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.1

TEX. CIV. PRAC. & REM. CODE ANN. §74.101 (Vernon 2005). A chiropractor is a health

care provider under the statute. Id. §74.001(a)(12)(A)(v). And, whether the chiropractor

at bar violated §74.101 depends upon whether he failed to disclose that which he had a

duty to mention.

        The Texas Medical Disclosure Panel, an entity created by the Texas Legislature,

is charged with developing a list of risks and hazards which must be disclosed to

patients. Id. §74.102(a) (Vernon Supp. 2010). However, its list is not all encompassing.

There may be instances of medical and surgical procedures which the panel has not

addressed. Should such an instance arise, like it did here, the provider or physician is

not free to remain silent.          Rather, he still must comply with the duties to disclose

imposed upon him by laws other than §74.101 et seq. Id. §74.106(b) (Vernon 2005).

One such duty is to inform the patient of risks “inherent” in the medical procedure to be


        1
         Medical care is defined to mean “any act defined as practicing medicine . . . by one licensed to
practice medicine in this state . . . .” TEX. CIV. PRAC. & REM. CODE ANN. §74.001(a)(19) (Vernon 2005).
Lovett argued in his motion for new trial that he is not licensed to practice and does not practice medicine
so he does not fall within the provisions of the statute. However, he did not raise this theory prior to trial.


                                                      3
performed. Binur v. Jacobo, 135 S.W.3d 646, 654 (Tex. 2004); Barclay v. Campbell,

704 S.W.2d 8, 9 (Tex. 1986).

       To be inherent, the risk must be one that exists in and is inseparable from the

procedure itself. Barclay v. Campbell, 704 S.W.2d at 10. For instance, in Barclay, the

Supreme Court had to decide whether the failure to disclose that tardive dyskinesia was

a risk of ingesting certain drugs fell short of complying with the duty to disclose. It

explained that for the dyskinesia to be an inherent risk in taking the drug, the condition

must arise from using the drug and not from any defect in the drug or from negligent

human intervention. Id. In other words, the drug or procedure must alone present the

risk for the latter to be inherent in the former; it is not enough if some additional factor,

independent of the procedure, exists or occurs for the risk to arise.

       The procedure at bar involved a manipulation of the cervical spine, while the risk

consisted of a ruptured or dissected vertebral artery as a result of the manipulation.

That Lovett did not inform Felton of the risk is undisputed. Whether he had to is not.

       Lovett’s expert testified that “there is a risk from doing . . . manipulations to the

cervical spine because if there is a problem with the vertebral artery, a . . . manipulation

. . . could exacerbate that or increase the symptoms or cause more damage.”

(Emphasis added). He also opined that “any type of manipulation, if there’s a problem

with that [vertebral] artery or if the adjustment is delivered improperly, that area can be

compromised with the consequences being very severe.” (Emphasis added). When

asked if he had an opinion “as to whether or not a chiropractor, if he performs a neck

adjustment correctly, can injure a healthy artery,” the expert replied “. . . a properly

administered . . . adjustment cannot harm a healthy vertebral artery.”           (Emphasis



                                             4
added).    The latter statement comports with testimony to the effect that “[c]urrent

medical literature indicates that it is highly unlikely, if not impossible, for a cervical spine

manipulation to injure a healthy vertebral artery.”           He also stated that for the

manipulation to have caused the dissection suffered by Felton, one of two other

circumstances would have had to exist or occur. First, Felton’s vertebral artery would

have to have been unhealthy or, second, the manipulation would have to have been

applied improperly. From this, we see that the potential for a dissection of the vertebral

artery arose only when some other factor or condition was present. If neither of those

additional indicia was present, the manipulation would not have resulted in an arterial

dissection. So, the potential for the latter to occur did not exist in the procedure itself;

nor was it inseparable from the procedure.

       Simply put, the injury suffered by Felton was not an inherent risk of which Lovett

had a duty to disclose at the time. To the extent that the jury found otherwise, it erred

as a matter of law. See Powers v. Floyd, 904 S.W.2d 713, 715 (Tex. App.–Waco 1995,

writ denied) (stating that whether the physician had a duty to disclose particular

information is a legal question). Moreover, the error was harmful for it was the basis

upon which judgment was entered. Thus, we sustain Lovett’s contention that he had no

duty to inform Felton of the potential for arterial dissection before administering the

spinal manipulation, reverse the trial court’s judgment, and render judgment denying

Felton recovery against Lovett.



                                                   Brian Quinn
                                                   Chief Justice




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