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.
On May 25, the state’s high court ordered a new trial in Benge and Kelsey-Seybold Medical Group v. Williams, a negligence suit against Houston obstetrician-gynecologist Jim Benge, MD. Justices found that the original jury should have been instructed to ignore an issue of alleged nondisclosure by Dr. Benge, and that failing to give the jury that instruction could have influenced their verdict.
In 2008, Lauren Williams was diagnosed with a bowel perforation after undergoing a laparoscopic-assisted vaginal hysterectomy (LAVH). Ms. Williams sued Dr. Benge, claiming he didn’t tell her a third-year resident would perform part of the procedure. That 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.
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. 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.
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.
An appeals court later reversed that decision, saying the issue of disclosure — which was not a valid basis for negligence — could have influenced the jury’s verdict. The appeals court kicked the case back to the lower court for a new trial. Both sides then appealed to the Supreme Court.
TMA, the Texas Alliance for Patient Access (TAPA), and the Texas Osteopathic Medical Association (TOMA) submitted a friend-of-the-court brief asking the Supreme Court to “not condone” the original verdict. They warned that it would be “impractical, if not impossible, to tell each patient in advance as to which resident may be or will be involved, his or her education, training, and experience level, and the care the resident will render during surgery."