

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.
            
 
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 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 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
                





[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.   


