                                                NO. 07-04-0057-CV

                                         IN THE COURT OF APPEALS

                                FOR THE SEVENTH DISTRICT OF TEXAS

                                                    AT AMARILLO

                                                        PANEL B

                                           FEBRUARY 2, 2006
                                    ______________________________

                                JANIE SANCHEZ and KENNETH ADAMS,

                                                                                 Appellants

                                                             v.

                      LOWRY SCHAUB, M.D. and KEVIN CRAWFORD, M.D.,

                                                                                 Appellees
                                 _________________________________

                  FROM THE 237TH DISTRICT COURT OF LUBBOCK COUNTY;

                         NO. 2002-518,200; HON. SAM MEDINA, PRESIDING
                               _______________________________

                                               Opinion
                                   _______________________________

Before QUINN, C.J. and CAMPBELL, J.1

        The dispute before us involves informed consent and whether Janie Sanchez gave

same to Lowry Schaub, M.D., and Kevin Crawford, M.D., before performing a stellate

ganglion block on her.2 According to the record before us, the block was her third under

the recommendation or with the approval of Crawford. At the time, Crawford and Schaub


        1
       Ex-Chief Justice Philip Johnson originally sat on the pan el that heard oral argument on this case.
However, he did not participate in this opinion.

        2
            Th e bloc k entails an injec tion into the rec ipient’s s pine.
had just completed a procedure whereby they placed Sanchez under general anesthesia

and manipulated her wrist. Some time before undergoing the wrist manipulation but after

having received the first two ganglion blocks, Sanchez verbally told Crawford that she did

not want any more blocks. Because of this, Crawford suggested the wrist manipulation as

an alternative.

       The record further indicates that after Sanchez received the third block while under

general anesthetic, a large abscess developed at the site of the injection. This resulted in

her experiencing pain and eventually having several of her spinal discs fused. So,

Sanchez sued the two doctors, contending, among other things, that they acted without her

informed consent.           Upon entertaining cross-motions for summary judgment, the

trial court granted those of Crawford and Schaub while denying that of Sanchez. The two

doctors had argued that their patient had consented to the block via the written consent

forms executed before undergoing the manipulation. We reverse the summary judgment.

       Three issues are before us. The first concerns whether Crawford and Schaub were

entitled to judgment as a matter of law. The second involves whether Sanchez proved the

lack of consent as a matter of law. The third covers whether the trial court erred in

purportedly excluding parol evidence. We now address the first.

       Informed Consent

       As previously mentioned, Sanchez purportedly told Crawford of her refusal to

undergo further blocks or other treatment entailing injections for the pain in her wrist.

Nevertheless, she signed several consent forms granting him and Schaub authority to

proceed with the manipulation and administer anesthetics. Therein appeared the following

language:

                                             2
      I . . . understand that my physician may discover other or different conditions
      which require additional or different procedures than those planned. I . . .
      authorize my physician, and such associates, technical assistants and other
      health care providers to perform such other procedures which are advisable
      in their professional judgment . . . [;]

      I . . . do hereby voluntarily consent and request such diagnostic procedures,
      hospital care, medical, surgical or x-ray treatment by Dr. Crawford, and such
      associates, assistants, designees, or other health care providers as are
      necessary in the judgment of the doctor, and further authorize the
      performance of such diagnostic studies or procedures which, in the
      professional opinion of such doctor, are advisable to attempt to remedy the
      condition(s) which have been explained to me as fracture left distal radius[;]


      It has been explained that during the course of the operation and the
      procedure(s) named herein, other or different conditions may be revealed
      that necessitate an extension of the original procedure(s) or additional or
      different procedure(s) than those set forth herein. I . . . therefore authorize
      and request such doctor, his associates, assistants, designees, or other
      health care provider to perform such procedures as are advisable in the
      professional judgment of such doctor. The authority granted herein shall
      extend to remedying all conditions that require treatment and which may not
      be known to such doctor at the time the procedure(s) or operation is
      commenced . . . [;]

       I . . . understand that anesthesia involves additional risks and hazards but I
       . . . request the use of anesthetics for the relief and protection from pain
       during the planned and additional procedures. I . . . realize the anesthesia
       may have to be changed possibly without explanation to me . . . ; [and,]

       I . . . consent to the administration of any anesthesia deemed advisable to
       be applied by or under the direction of Dr. Schaub and/or an anesthesiologist
       on the Medical Staff of Methodist Hospital.

(Emphasis added). From the above, we see that the forms spoke in terms of informed

consent viz the medical procedures to be completed and the anesthetics to be

administered. Moreover, the words used withheld from the doctors unbridled discretion to

act. For instance, their authority to undertake procedures other than the wrist manipulation

(which the forms expressly alluded to) was conditioned by such terms as “advisable in their


                                             3
professional judgment,“ “necessary in the judgment of the doctor,” “in the professional

opinion of such doctor, are advisable,” “advisable in the professional judgment of such

doctor,” and “require[d].” In other words, Crawford (who was to perform the manipulation)

was given permission to undertake other medical procedures, but they had to be

necessary, required, or advisable in his professional judgment.

       Similarly conditioned was the anesthesiologist’s (i.e. Schaub’s) discretion in

administering anesthetics. Though one form stated that Sanchez consented to the

“administration of any anesthesia,” the anesthesia and its mode of administration had to

be “advisable.” The other form said nothing about the anesthesia being advisable by

anyone. Yet, there, the “use of anesthetics” was linked to ”the relief and protection from

pain during   the planned and additional procedures.”       (Emphasis added).      So, the

administration of anesthetics under the second form was dependent upon the medical

procedures pursued, which, in turn, were dependent upon the doctor’s professional

judgment and opinion. Thus, the ability of the physicians to act and the scope of consent

granted by Sanchez revolved around and were limited by concepts such as necessity,

judgment, and advisability.

       Next, authority holds that when practicing medicine, doctors represent that they

possess the reasonable degree of skill and learning possessed by others in their

profession. Zapata v. Rosenfeld, 811 S.W.2d 182, 184 (Tex. App.–Houston [1st Dist.]

1991, writ denied); Dennis v. Allison, 678 S.W.2d 511, 513 (Tex. App.–El Paso 1984), aff’d,

698 S.W.2d 94 (Tex. 1985); accord Schneider v. Haws, 118 S.W.3d 886, 890 (Tex.

App.–Amarillo 2003, no pet.) (stating that physicians need only exercise ordinary or



                                            4
reasonable care and skill under the circumstances). So too is it implicit in the performance

of their trade that they will use reasonable and ordinary care and skill in the application of

such knowledge to accomplish the purpose for which they are employed, Dennis v. Allison,

678 S.W.2d at 184, and that they will exercise their best judgment. Zapata v. Rosenfeld,

811 S.W.2d at 184. And, the standard against which one assesses whether these

representations and duties were met is one of a reasonable physician in like circumstance.

In other words, the exercise by a physician of his judgment is gauged against the accepted

standards in the medical community. Russell v. Murphy, 86 S.W.3d 745, 749 (Tex.

App.–Dallas 2002), rev’d on other grounds, 167 S.W.3d 835 (Tex. 2005); see Murphy v.

Russell, 167 S.W.3d 835, 839 (Tex. 2005) (recognizing that a physician’s performance of

a medical procedure without prior informed consent may not necessarily result in liability

if circumstances exist which, under the applicable standard of care, justify the conduct, and

expert testimony may be needed to determine that). With that said, we turn to the

circumstances before us.

       Upon comparison of the phrases used to describe the authority afforded both

doctors via the consent forms with the general duties imposed upon physicians by the law,

we conclude that the forms were little more than a reiteration of the law. The former

merely stated that Crawford and Schaub were accorded the ability to invoke their judgment

while the latter imposed upon them the obligation to exercise their best judgment. So, the

consent forms at bar actually afforded them no more or less authority and protection than

that given by law. Given this, we must also conclude that whether they exceeded the

leeway granted and thereby exposed themselves to liability for undertaking a procedure



                                              5
outside the scope of Sanchez’ consent depended upon whether their actions, under the

circumstances appearing before them, comported with objective standards of care

applicable to those in their profession.3 Thus, their determination that the ganglion block

was needed was not alone enough to shield them from liability if the decision nonetheless

deviated from those standards of care, and we reject their argument to the contrary. Again,

what mattered is whether the decision to administer the block comported with objective

medical standards of care under the circumstances before them.

        Moreover, the record contains evidence indicating that not only would Sanchez have

refused Crawford and Schaub permission to undertake the block had she been asked but

also that she purportedly refused to undergo such a procedure before agreeing to the

manipulation. Furthermore, one can reasonably infer from that evidence (assuming it was

to be believed) that Crawford knew of her refusal when discussing the block with Schaub

since he was the one whom Sanchez told and who suggested the manipulation due to her

refusal. To this, we add expert testimony appearing of record that: 1) “the standard of care

. . . required Schaub to wait until recovery from the general anesthesia to obtain actual and

meaningful informed consent for the procedure before performing the stellate ganglion

block . . .”; 2) “the standard of care . . . required that if a stellate ganglion block is to be

performed without informed consent and while the patient is unconscious . . . the patient

have an emergency condition involving life or death”; 3) “the standard of care . . . require[d]



        3
          W e take care to note that the same may not be true when the consent form expressly grants the
physician authority to do the spec ific proc edu re do ne. Our opinion should not be read to encompass that
situation since those are not the circumstances here. Again, the consent forms Sanchez executed did not
expressly m ention a stellate ganglion block. So, to escape liability, Crawford and Schaub invoked clauses
permitting them to undertake additional procedures and administer anesthetics deemed required, necess ary,
or ad visab le in the e xercise of the ir judgm ent.

                                                    6
that a stellate ganglion block should never be administered while the patient is

unconscious, unless there is a medical emergency involving life or death”; and, 4) “the

accepted standard of care in ordering and administering a stellate ganglion block

procedure require[d] the patient to be awake and able to respond and report to the medical

care provider.” Furthermore, we are cited to no evidence of record suggesting that there

existed an emergency involving Sanchez’ life or death when Crawford and Schaub opted

to perform the block. Nor did our own review uncover any. Rather, it revealed the

presence of evidence illustrating that the injection was made to assure the effectiveness

of the wrist manipulation, not to address some medical emergency encompassing

Sanchez’ life or death.

        In short, there appears evidence of record raising material issues of fact regarding

whether the actions of Crawford and Schaub comported with accepted medical standards

when performing the block. This, in turn, means that material issues of fact exist regarding

whether the two physicians acted within the scope of consent granted by Sanchez. Thus,

they were not entitled to judgment as a matter of law. Yet, we cannot say that Sanchez

was entitled to judgment as a matter of law either. This is due to the testimony of Crawford

and Schaub indicating that in their view the administration of the block was a necessary

procedure under the circumstances. Given this contradictory evidence, we have no choice

but to allow a factfinder opportunity to resolve the controversy. 4


        4
         Crawfo rd and Schaub repeatedly allude to the decision in Byington v. Mize, No. 05-00-0786-CV, 2002
Tex. App. LEXIS 5008 (Tex. App.–Dallas, July 15, 2002, no pet.) as dispositive. Though similarities exist
between the consent forms involved there and those at issue here, the unpublished and heretofore uncited
opinion is not one upon which we can rely. This is so for several reasons, not the least of which is the
absence of evidence indicating that Byington expressly told Mize not to perform the objec tion able procedure.
Moreo ver, the opinion deviate s from both th e D allas court’s own published opinion in Russell v. Murphy, 86
S.W .3d 745 (Te x. Ap p.–D allas 2002 ), rev’d on other grounds, 167 S.W .3d 835 (Tex. 2005) and the Supreme

                                                      7
        Exclusion of Parol Evidence

        As for the issue involving parol evidence, we must overrule it. We do so not

because the trial court acted within the scope of its discretion when ruling but rather

because we know of no particular evidence it excluded.

        In granting the summary judgment, the trial court simply “sustain[ed] the defendant’s

objections to all summary judgment evidence that violates the parol evidence rule and . .

. [ordered] such evidence stricken.” Yet, what evidence, if any, purportedly violated that

rule went unmentioned in the order. That is, the trial court made no determination that any

particular piece of evidence offered by Sanchez was inadmissible; it simply said that it was

going to strike parol evidence, whatever that evidence may be. Given this, there was and

is nothing for us to review.

        Given the chance that this matter may arise again on remand, we do note that while

the consent form may be a contract, the provisions at issue are far from specific. Again,

they do not expressly address the administration of a stellate ganglion block. As previously

stated, Crawford and Schaub endeavor to find succor from open ended words such as

“advisable,” “professional judgment,” and “professional opinion.”                       And, because the

exercise of professional judgment and opinion is dependent upon the circumstances

involved and compliance with accepted medical standards applicable under those



Court’s published opinion in that same case. See M urphy v. R ussell, 167 S.W .3d 835, 839 (T ex. 2005).
Again, the latte r state that determ ining whethe r a p hysician acte d within the scope of his consent is an
objective decision dependent upon expert testimony indicating compliance with accepted comm unity medical
standards. Yet, the Byington panel deem ed expe rt testimony irrelevant. So too did it imply that the subjective
determination of the physician was controlling. And, we find the latter implication most interesting. How can
a subjective test control when the consent form itself calls for the use of “professional” judgment and the
profess ion is obligated to comply with generally accepted medical standards applicable to similarly situated
physicians ? Sim ply put, it can not.

                                                       8
circumstances, knowledge that the patient did not want the procedure done would be a

relevant circumstance to consider.

        Accordingly, we reverse the summary judgment and remand the proceeding to the

trial court.



                                              Brian Quinn
                                              Chief Justice




                                          9
