Opinion issued September 22, 2015




                                    In The
                             Court of Appeals
                                   For The
                         First District of Texas
                         ————————————
                             NO. 01-12-00578-CV
                       ———————————
   JIM P. BENGE, M.D., AND KELSEY-SEYBOLD MEDICAL GROUP,
                         PLLC, Appellants
                               V.
                   LAUREN WILLIAMS, Appellee

                  On Appeal from the 164th District Court
                           Harris County, Texas
                     Trial Court Case No. 2010-52657

          OPINION DISSENTING FROM DENIAL OF EN BANC
                       RECONSIDERATION

      I respectfully dissent from the Court’s denial of en banc reconsideration.

The majority opinion, in my view, is based on misreadings of two seminal Texas

Supreme Court cases, Felton v. Lovett and Crown Life Insurance Co. v. Casteel,

with grave consequences for Texas law.
      First, the majority reconstitutes the plaintiff Williams’ case and, in my view,

misconstrues the Texas Supreme Court’s holding in Felton v. Lovett as to the scope

of Texas’s informed consent statute, Civil Practice and Remedies Code section

74.101, and erroneously claims that Williams covertly tried an unpled and invalid

cause of action under that statute disguised as a malpractice claim. Second, it

misconstrues the Texas Supreme Court’s opinion in Crown Life Insurance Co. v.

Casteel as requiring it to reverse this case and remand for a new trial because it

concludes the jury might have awarded unspecified damages on that unpled,

invalid claim as to which no error was specifically alleged or preserved, instead of

awarding damages on the malpractice claim Williams actually did plead and

submit to the jury on a broad-form question as to liability for professional

negligence.

      In restating Williams’ case, the majority claims that when Williams pled that

Dr. Benge committed professional malpractice by, inter alia, secretly using an

unqualified resident physician to perform fifty percent of her laparoscopic-assisted

vaginal hysterectomy surgery (“LAVH”), she was actually pleading that Dr. Benge

violated the informed consent statute by failing to obtain her consent to his use of a

resident. The majority holds that Williams’ unpled informed consent claim was

invalid because a claim that Dr. Benge failed to obtain Williams’ consent to the use

of a resident does not concern a risk inherent in an LAVH surgery for which



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section 74.101 requires consent. It then finds that the jury improperly considered

this unpled and invalid claim and awarded unspecified damages on it, so it is

required to reverse and remand this case.

      The majority’s restatement of the case, in my view, distorts Williams’ actual

pleadings, the nature of the trial, and the law regarding the informed consent

statute, malpractice, and jury charge error. Williams made no claim that she

suffered damages because Dr. Benge failed to inform her that he was using a

resident to assist him, and she made no claim for any damages traceable to any

such claim. Williams plainly pled that Dr. Benge secretly used an unqualified

resident physician, who had never performed an LAVH, as a co-surgeon to

perform half of her surgery; that this was an act of malpractice that violated the

canons of professional ethics and the professional standard of care of a surgeon;

and that this concealed use of an unqualified co-surgeon directly caused her

injuries when that unqualified co-surgeon perforated her bowel, causing her life-

threatening and life-altering injuries. Williams’ and Dr. Benge’s expert witnesses

both testified that the use of a secret unqualified co-surgeon to perform half of an

LAVH violates the professional standard of care of a reasonable and prudent

physician. There was no testimony that Dr. Benge failed to disclose his use of a

resident; that Williams was entitled to such a disclosure under the informed

consent statute; or that Dr. Benge’s failure to obtain her consent to the use of a



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resident violated his statutory duty of disclosure and caused her damages. Nor was

any such theory of recovery pled either by Williams affirmatively or by Dr. Benge

defensively.

       In making its argument for reconstructing the case, the majority, in my

judgment, misconstrues the holding in Felton v. Lovett, in which the Texas

Supreme Court construed the informed consent statute, Civil Practice and

Remedies Code section 74.101, and stretches the scope of the statute beyond all

recognition. What Felton actually says—directly contrary to what the majority

holds—is that a physician has a statutory duty to disclose to his patient “risks

inherent in treatment” that “occur without negligence,” but that there is no duty to

disclose malpractice under the statute. See 388 S.W.3d 656, 661–62 (Tex. 2012)

(emphasis added) (stating that section 74.101 “requires[s] disclosure of risks

‘inherent’ in treatment,” i.e., risks that “exist[] in and [are] inseparable from the

procedure      itself . . . . even   if   treatment      is    proper     and     properly

administered. . . . Inherent risks of treatment are those which are directly related to

the treatment and occur without negligence.”).            Felton also expressly states,

“Malpractice . . . is [a] risk . . . that inheres in the practice of health care, not in the

care itself. Thus, the inherent risks of surgery do not include the possibility that it

may be . . . negligently performed.” Id. at 662 (emphasis in original and added).

Because the only claim Williams made was for malpractice, the plain language of



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Felton takes her claim outside the scope of claims made under the informed

consent statute.

      In a proper informed consent case, the plaintiff seeks damages for injuries

inherent in a properly performed procedure which he claims he would not have

consented to had the physician disclosed to him those inherent risks. See Hood v.

Phillips, 554 S.W.2d 160, 166–67 (Tex. 1977) (holding submission of issue of

informed consent to jury was proper where patient claimed physician failed to

warn him of risks of numbness, heart attack or stroke, and lack of success inherent

in medically unaccepted treatment for emphysema from which patient suffered

injury and where defendant physician testified he did disclose those risks).

However, the risk that an unqualified co-surgeon will pierce a patient’s bowel is

not a risk inherent in a properly performed LAVH and thus subject to statutory

disclosure.   It is, instead, a foreseeable risk of a negligently performed

procedure—the very cause of action Williams pled and tried. See id. at 165

(burden of proof on a patient-plaintiff in a medical malpractice suit is “to establish

that the physician-defendant has undertaken a mode or form of treatment which a

reasonable and prudent member of the medical profession would not have

undertaken under the same or similar circumstances”).

      Dr. Benge’s failure to disclose his intent to use a person who had never done

this laser-assisted surgery before to perform half of the LAVH concealed from



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Williams his breach of the standard of care of a reasonable and prudent LAVH

surgeon. Dr. Benge’s breach in using an unqualified resident as a co-surgeon

foreseeably resulted in the perforation of Williams’s bowel. That is not a mere

failure to disclose the use of an assistant as a risk of a properly performed LAVH.

That is evidence of breach of the standard of care of a reasonable and prudent

physician by the use of a secret unqualified co-surgeon, as both experts testified.

Thus, this is not an inherent risk of surgery to which the statutory duty to disclose

could apply.    See Felton, 388 S.W.3d at 661–62 (defining “risks inherent in

treatment”). Section 74.101 has no relevance to this case. The invalid theory of

liability found by the majority to have been improperly submitted to the jury in the

broad-form negligence question is simply not there.

      The majority compounds its error when it opines that the Texas Supreme

Court’s opinion in Crown Life Insurance Co. v. Casteel not only allows but

requires it to remand this case to the trial court for retrial with the inclusion of an

instruction that the jury must not consider as evidence of malpractice any evidence

that Dr. Benge concealed from Williams his use of an unqualified co-surgeon

during the LAVH.       The majority’s justification for this holding is that this

evidentiary instruction averts the danger that the jury might have awarded

unspecified damages on the unpled and invalid theory of an alleged breach of the

statutory duty to disclose the use of an assistant. But the invalid theory is entirely



                                          6
of the majority’s own making, and the evidence it orders the trial court to instruct

the jury not to consider is material evidence of malpractice, or medical negligence.

The case was, in fact, properly submitted to the jury on a broad-form liability

question as to medical negligence—the only theory pled and tried by Williams.

      Casteel holds just the opposite from the majority—namely, that the trial

court’s submission of a case to the jury on a single broad-form liability question is

harmful error requiring reversal when it permits the jury to find an unspecified

improper element of damages on an invalid theory that was actually pled along

with a valid theory and submitted to the jury—not on an invalid and non-existent

theory of liability that was not pled. See 22 S.W.3d 378, 387–88 (Tex. 2000).

Here, nothing was pled but Williams’ malpractice claim—a valid theory of

recovery of damages for her injuries. And all of the damages Williams sought and

the jury awarded—$240,000 in damages for past and future pain and mental

anguish, $302,609 for past and future lost earning capacity, $20,000 for past and

future physical impairment, and $1,332,960.14 for past and future medical

expenses—were properly recoverable for the injuries Williams suffered as a direct

result of Dr. Benge’s medical negligence. None of these damages is a type of

damages that cannot be recovered for malpractice or might have been recovered on

some other theory that was pled and tried, because there was no such theory.




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      No damages were sought and submitted to or awarded by the jury that might

reasonably be mistaken as resulting from anything other than the injuries Williams

directly received from Dr. Benge’s acts of malpractice. No damages were sought

or were attributable to a claim that Dr. Benge caused Williams’ injuries by failing

to obtain her consent to risks inherent in a properly performed LAVH procedure.

Thus, as it misconstrues and expands Felton and section 74.101, so the majority

opinion also misconstrues and expands Casteel into the realm of unlimited

speculation as to what a jury might have told itself about an unpled and

inapplicable cause of action about which it was asked no question and given no

instruction.

      The damage done by the majority’s reading of Casteel extends far beyond

this case to the courts’ application of Casteel in reversing cases submitted to the

jury on broad-form liability questions long mandated by the Texas Supreme Court

and by the Texas Rules of Civil Procedure. See TEX. R. CIV. P. 277 (mandating

broad-form submission “whenever feasible”); Tex. Dep’t of Human Servs. v. E.B.,

802 S.W.2d 647, 649 (Tex. 1990) (“Rule 277 mandates broad form submission

‘whenever feasible,’ that is, in any or every instance in which it is capable of being

accomplished.”). On the majority’s reasoning, broad-form submission is never

feasible when an appellate court can conceive of an invalid theory of recovery that




                                          8
might have been pled but was not and that, if pled, might have permitted the jury to

find an improper unspecified element of damages.

      I cannot agree with the majority’s construction of either Felton or Casteel. I

believe the majority’s reading of Felton does great damage to the law by nullifying

a very serious breach of the canons of ethics and standard of care of a reasonable

and prudent physician as an act of malpractice for which damages may be

recovered. I am also concerned that the majority’s reading of Casteel allows an

appellate court to overturn a jury verdict on damages entered in response to a

broad-form theory of liability for medical negligence because the trial court did not

submit to the jury a question or instruction on an invalid theory of liability that was

not pled as a claim for damages by the plaintiff or as a defensive issue by the

defendant, and as to which no damages were sought—but which the appellate court

speculates nevertheless might have somehow been wrongly considered by the jury

and might have led it wrongly to find invalid damages of an unspecified sort.

      This highly speculative reading of applicable law stretches the scope of the

informed consent statute beyond all recognition, distorts the well-established law

of liability for both breach of the duty to disclose and medical negligence, and

makes the entire law relating to the submission of broad-form jury questions

unworkable, as the appellate court is allowed to speculate however it likes as to

what the jury might have thought about unpled, unsubmitted, invalid causes of



                                          9
action and the unspecified damages that have been awarded on those unpled causes

of action, while it ignores the causes of action and defenses actually pled and the

damages actually sought and awarded. The majority opinion sends the case back

to be retried with an evidentiary instruction that the jury must not consider

admissible material evidence of malpractice in assessing damages. The opinion

can, therefore, only create confusion in the trial court on remand and in any

subsequent trial court faced with any of the same issues.

      In my view, the extraordinary circumstances of this case warrant en banc

reconsideration. See TEX. R. APP. P. 41.2(c) (stating that en banc consideration is

“not favored” and should only be ordered if “necessary to secure or maintain

uniformity of the court’s decisions” or “extraordinary circumstances require en

banc consideration”). I therefore respectfully dissent from the denial of en banc

reconsideration.




                                                    Evelyn V. Keyes
                                                    Justice


Panel consisted of Justices Keyes, Bland, and Brown.

En banc reconsideration was requested. See TEX. R. APP. P. 49.7.

A majority of the justices of the Court voted to overrule the motion for en banc
reconsideration.

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The en banc court consists of Chief Justice Radack and Justices Jennings, Keyes,
Higley, Bland, Massengale, Brown, Huddle, and Lloyd.

Justice Brown, writing a supplemental opinion on motion for en banc
reconsideration, joined by Justice Bland.

Justice Jennings, dissenting to the denial of en banc reconsideration with a separate
opinion, joined by Justices Keyes and Higley.

Justice Keyes, dissenting to the denial of en banc reconsideration with a separate
opinion.

Justice Lloyd, dissenting to the denial of en banc reconsideration with a separate
opinion, joined by Justices Keyes and Higley.




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