High Court Sides With Medicine in Nondisclosure Case
By Joey Berlin Texas Medicine August 2018

The Texas Supreme Court sided with the Texas Medical Association in a nondisclosure case that TMA warned would have significant, troubling implications had it gone the wrong way.

Aug_18_TM_LawThe central issue for medicine: Whether physicians must tell patients in advance if a medical resident “may be or will be involved [in a procedure], his or her education, training, and experience level, and the care the resident will render during surgery” — something TMA, the Texas Alliance for Patient Access (TAPA), and the Texas Osteopathic Medical Association (TOMA) say would be “impractical, if not impossible” for physicians to do, according to a friend-of-the-court brief the physician groups filed in Benge and Kelsey-Seybold Medical Group v. Williams. 

Thanks to the high court’s decision in the case, physicians won’t have to worry about that burden. 

The justices said the original jury should have been instructed to ignore allegations that Houston obstetrician-gynecologist Jim Benge, MD, should have told Lauren Williams that a third-year resident would perform part of the laparoscopic-assisted vaginal hysterectomy (LAVH) procedure she underwent in 2008. Failing to give the jurors that instruction could have influenced their verdict, the high court ruled on May 25. The justices ordered a new trial.

Ms. Williams was diagnosed with a bowel perforation after the surgery. She sued Dr. Benge for negligence, arguing he should have told her the resident, Lauren Giacobbe, MD, had never assisted with an LAVH procedure.

Ms. Williams claimed although she had consented to Dr. Benge having assistance on the surgery, he didn’t tell her the resident would be performing part of it. Ms. Williams also said Dr. Benge had failed to disclose Dr. Giacobbe’s lack of experience with the procedure, even though that’s not part of any informed-consent disclosure a physician is required to make. (See “Are You Experienced?” January 2018 Texas Medicine, pages 38-41, or visit www.texmed.org/Experienced/.)

During the original trial, Dr. Benge’s attorneys proposed that the jury be instructed not to “consider what the defendant told, or did not tell, the plaintiff about the resident physician being involved with the surgery.” The court refused to give the jury that instruction. 

Ultimately, the jury was simply asked whether Dr. Benge was negligent. The jury decided that he was and awarded Ms. Williams more than $1.9 million.

Verdict clouded

An appeals court reversed that decision, saying the issue of disclosure — which was not a valid basis for negligence — could have influenced the jury’s verdict. 

The Supreme Court agreed. 

Ms. Williams didn’t actually claim lack of informed consent as part of her negligence case, but Dr. Benge’s side argued that she “repeatedly injected informed consent into the case.” 

In its opinion, the Supreme Court noted Dr. Benge had been asked “about his nondisclosure of Dr. Giacobbe’s involvement and Williams’ lack of consent some 20 times” during the jury trial. Ms. Williams’ testimony “likewise centered on Dr. Benge’s failure to disclose” the resident’s involvement. And Ms. Williams’ expert, Bruce Patsner, MD, testified that the lack of disclosure “violated the standard of care and was negligent,” the high court noted. “Williams argued throughout the trial that Dr. Benge’s nondisclosure was deceitful and betrayed her trust in him.” 

Because the trial court refused to instruct the jury to ignore the nondisclosure issue, “we cannot determine whether it was the basis for the jury’s finding,” Chief Justice Nathan L. Hecht wrote. 

Medicine asked the court to “not condone” the original verdict. The physician groups’ brief expressed concern the case could set an untenable standard that would require physicians to obtain separate consent for every resident involved in patient procedures, with details about each resident’s education, qualifications, and experience.

“These disclosures would be extraordinarily difficult to carry out in practice, and would impose extra time, expense, and further burdens upon the health care system,” medicine’s brief says. “Such policies have the potential to seriously impede graduate medical education in Texas, as fewer residents may be given the opportunity to participate meaningfully in medical treatments or procedures. And, such disclosures may have a chilling effect on medical care for those patients unwilling to receive care where the possibility of resident participation exists and may be necessary.”

Earnest Wotring, an attorney for Dr. Benge and Kelsey-Seybold Medical Group, provided a statement from Kelsey-Seybold applauding the decision: “The Supreme Court’s ruling means plaintiff’s counsel will not be permitted to make those invalid arguments when this case is tried again.”

Randall Sorrels, an attorney for Ms. Williams, told Texas Medicine he would win the case at the second trial, calling it “a clear-cut case of negligence.”

“If they want the jury instruction, they certainly can have it,” Mr. Sorrels said of Dr. Benge’s side. “I talked to the jurors after this case, and they said it was deplorable the way Ms. Williams was treated, and it wouldn’t have mattered to them at all if the instruction had been put in.”


Tex Med. 2018;114(8):42-43
August 2018 Texas Medicine Contents
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Last Updated On

August 21, 2018

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Joey Berlin

Associate Editor

(512) 370-1393

Joey Berlin is associate editor of Texas Medicine. His previous work includes stints as a reporter and editor for various newspapers and publishing companies, and he’s covered everything from hard news to sports to workers’ compensation. Joey grew up in the Kansas City area and attended the University of Kansas. He lives in Austin.

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