Texas PJC Malpractice 2022

PJC 51.15

M EDICAL M ALPRACTICE —T HEORIES OF D IRECT L IABILITY

PJC 51.15

Battery—Medical

QUESTION ______ Did Dr. Davis , without Paul Payne ’s consent, perform an intestinal bypass on Paul Payne ? Consent is implied by law if the patient is unconscious or otherwise unable to give express consent and an immediate surgical procedure is necessary to preserve his life or health. Answer “Yes” or “No.” Answer: _______________ COMMENT When to use. PJC 51.15 may be used to submit a claim of battery. Earlier Texas cases recognized the tort of battery when a physician, with no justification or excuse, performed an operation without the express or implied consent of the patient or some one authorized to consent for the patient. Gravis v. Physicians & Surgeons Hospital , 427 S.W.2d 310, 311 (Tex. 1968); see also Moss v. Rishworth , 222 S.W. 225, 226 (Tex. Comm’n App. 1920, judgm’t adopted); Thaxton v. Reed , 339 S.W.2d 241, 246 (Tex. App.—Dallas 1960, writ ref’d n.r.e.). The Texas Supreme Court has explained what does not constitute a medical battery. See Schaub v. Sanchez , 229 S.W.3d 322, 323–24 (Tex. 2007) (per curiam); Miller v. HCA, Inc. , 118 S.W.3d 758, 767–68 (Tex. 2003). When not to use. A cause of action for battery is no longer available if the basis of the patient’s claim is that the physician failed to disclose adequately the risks involved in the surgery and thus failed to obtain informed consent, as distinguished from any consent. See Acts 2003, 78th Leg., R.S., ch. 204, § 10.01 (H.B. 4), eff. Sept. 1, 2003 (codified at Tex. Civ. Prac. & Rem. Code §74.101), which provides as fol lows: In a suit against a ... health care provider involving a health care liabil ity claim that is based on the failure of the ... provider to disclose or ade quately to disclose the risks and hazards involved in the medical care or surgical procedure rendered by the ... 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. The status or viability of the cause of action for battery after the enactment of the statutory provision has not been expressly determined.

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