
                           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.



