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Benge v. Williams

Supreme Court of Texas

May 25, 2018

Jim P. Benge, MD and Kelsey-Seybold Medical Group PLLC, Petitioners and Cross-Respondents,
v.
Lauren Williams, Respondent and Cross-Petitioner

          Argued January 11, 2018

          On Petition for Review from the Court of Appeals for the First District of Texas

          NATHAN L. HECHT CHIEF JUSTICE

         At the trial of this healthcare-liability case, the patient argued and offered evidence that her physician was negligent both in using an inexperienced resident to assist with performing her surgery and in not disclosing the resident's level of involvement, although she does not claim a right to recover for the nondisclosure. The jury was asked simply whether the physician was negligent without being instructed not to consider the nondisclosure. A divided court of appeals concluded that the trial court's refusal to instruct the jury as requested was harmful error, [1] and we agree. The appeals court also concluded that the patient's expert was "practicing medicine" at the time of trial and thus qualified to testify.[2] Again, we agree. We affirm the judgment of the court of appeals remanding the case to the trial court for a new trial.

         I

         During a laparoscopic-assisted vaginal hysterectomy ("LAVH") to remove her uterus, ovaries, and fallopian tubes, Lauren Williams, 39, suffered a bowel perforation that was not immediately diagnosed, resulting in catastrophic post-surgical consequences. She sued the surgeon, Dr. Jim Benge, a board-certified obstetrician and gynecologist, and his practice group, Kelsey-Seybold Medical Group, PLLC (together referred to as "Dr. Benge"). The jury found that Dr. Benge's negligence caused Williams' injuries. We summarize the evidence in the light most favorable to the verdict.[3]

         A week before the surgery, Dr. Benge and Williams discussed the LAVH procedure and reviewed written consent forms setting out all required disclosures of risks, including damage to the bowel. By filling out the forms and signing them, Williams stated:

I Lauren R. Williams voluntarily request Dr. Benge as my physician, and such associates, technical assistants and other health care providers as they may deem necessary, to treat my condition . . . .
I . . . understand that the physician may require other physicians including residents to perform important tasks based on their skill set and, in the case of residents, under the supervision of the responsible physician. (Residents are doctors who have finished medical school but are getting more training.)

Dr. Benge testified that in explaining the consent forms, he told Williams that he "would be doing the surgery with an assistant." Williams testified that Dr. Benge did not tell her the resident would actually be performing part of the surgery.

         Dr. Benge was assisted by Dr. Lauren Giacobbe, a resident in the third year of a 4-year program. Dr. Giacobbe had significant experience with hysterectomies and laparoscopic surgeries, but she had not previously assisted with an LAVH surgery, a fact Dr. Benge did not disclose to Williams. Dr. Giacobbe testified that she explained to Dr. Benge her experience level before the surgery began and that he determined the tasks she would perform. She also testified that she introduced herself to Williams on the morning of the surgery and told Williams that she was a resident and was going to be assisting Dr. Benge with the surgery. Dr. Giacobbe admitted she did not identify the surgical tasks she would perform but explained that she did not know those details until after the surgery began. Williams testified that she did not speak with Dr. Giacobbe on the morning of her surgery and would not have undergone the surgery if she had known it was Dr. Giacobbe's first time assisting an LAVH procedure.

         Dr. Benge and Dr. Giacobbe both estimated that Dr. Giacobbe performed 40% or less of the surgery, but Dr. Giacobbe reported to the hospital in her resident-experience log that she had performed 50% or more. During the laparoscopic part of the procedure, Dr. Benge operated on Williams' right side, demonstrating each step for Dr. Giacobbe, and showing her "how to use the instruments and what to do". Dr. Giacobbe then repeated the same thing on the left side.

         When they finished, Dr. Benge examined the surgical area, saw no sign that Williams' bowel had been perforated, and noted no complications in the post-operative report. But within hours, Williams began to complain of severe pain, abdominal tenderness, and nausea. By the time Dr. Benge saw Williams the next morning, she had a fever and was anemic, tachycardic, and in constant pain. Dr. Benge started her on intravenous antibiotics and ordered an x-ray of her chest to ensure that she did not have pneumonia. He did not suspect that she had a perforated bowel. Dr. Benge did not see Williams again that day because he went home ill.

         Williams' condition continued to deteriorate. She began experiencing rectal bleeding. Her hemoglobin and hematocrit levels fell significantly. She required a multi-unit blood transfusion and continued experiencing constant pain. Three days post-surgery, a gastroenterologist diagnosed her with a bowel perforation that was leaking feces from her intestines into her abdomen. The doctors repaired the perforation, which was on Williams' left side where Dr. Giacobbe had operated, but a colostomy was required. Williams developed sepsis, underwent a tracheotomy, was put on a mechanical ventilator, and remained in a chemically induced coma for 3 weeks. Once discharged, she required home health assistance for an extended recovery period and was unable to work.

         Williams had a second surgery to reverse the colostomy, but it could not be completed successfully, and the colostomy was replaced with an ileostomy. A third surgery to replace the ileostomy with another colostomy was successful, but the colostomy became permanent. Williams has had 2 subsequent surgeries to address complications related to the colostomy.

         Dr. Benge testified that the bowel perforation likely resulted from an arc of electricity from a Bovie, an electrical cutting and cauterizing instrument used during the surgery to both cut and fuse tissue and to stop bleeding. The instrument was near the weighted speculum, [4] which was touching the bowel. Even though no immediate damage to the bowel tissue was visible at the time of the surgery, Dr. Benge testified that it was possible for an electric arc to pass from the Bovie to the speculum without being seen, causing a thermal injury to Williams' bowel tissue below.

         Williams' expert, Dr. Bruce Patsner, testified that the perforation was caused by a surgical cut, not an electric arc. The error, he believed, was more likely made by Dr. Giacobbe, the less-experienced resident, than by Dr. Benge. Dr. Patsner further opined that Williams' unusual post-surgery discomfort should have raised Dr. Benge's suspicion that she had a bowel injury. Dr. Patsner concluded that by failing to properly supervise Dr. Giacobbe and to timely discover the source of Williams' post-LAVH complications, Dr. Benge deviated from the standard of care and proximately caused Williams' injuries.

         Williams offered evidence that Dr. Benge failed to disclose Dr. Giacobbe's experience level and degree of involvement in the surgery. Williams argued throughout the trial that Dr. Benge's nondisclosure was deceitful and betrayed her trust in him. Dr. Patsner further testified that the lack of disclosure violated the standard of care and was negligent. But Williams has never claimed that the nondisclosure precluded her informed consent or otherwise provides a basis for liability. The jury was asked a single question on liability: Did Dr. Benge's negligence proximately cause Williams' injuries? Dr. Benge objected to the question because it "allow[ed] the jury to base its finding on a violation of informed consent" that Williams did not claim. Dr. Benge requested that the jury be "instructed that in deciding whether [Dr. Benge] was negligent, you cannot consider what [Dr. Benge] told, or did not tell, [Williams] about [Dr. Giacobbe's] being involved with the surgery." The trial court overruled Dr. Benge's objection and refused to give the jury the requested instruction.

         The trial court rendered judgment on the verdict for Williams for almost $2 million. On appeal, Dr. Benge argued that Dr. Patsner was not qualified under the Texas Medical Liability Act ("TMLA" or the "Act")[5] to testify as an expert, leaving Williams with no evidence that Dr. Benge violated the standard of care, and thus requiring rendition of judgment in his favor. Dr. Benge also argued that the jury was allowed to find Dr. Benge negligent for failing to disclose Dr. Giacobbe's experience and involvement in the surgery, a basis for liability Williams had disclaimed, thus requiring a new trial. A deeply divided court of appeals agreed only with the second argument and reversed and remanded the case for a new trial.[6] We granted Williams' and Dr. Benge's petitions for review.[7]

          II

         The TMLA requires that an expert testifying on whether a physician departed from accepted standards of medical care must have been "practicing medicine" either when the claim arose or when the testimony was given.[8] Under the Act, practicing medicine "includes, but is not limited to, training residents or students at an accredited school of medicine or osteopathy or serving as a consulting physician to other physicians who provide direct patient care, upon the request of such other physicians."[9] "Physician" in this context and for our purposes means a person licensed to practice medicine in the United States.[10] Dr. Patsner was not practicing medicine when Williams' claim arose; he was teaching law in Houston. Dr. Benge argues that he also was not practicing medicine at the time he testified.

         Dr. Patsner is an obstetrician and gynecologist, board-certified in 1986, and licensed to practice in California, New Jersey, and New York. He graduated from Baylor College of Medicine and completed his residency at Harvard Medical School. He estimates that he has performed or first-assisted some 450 LAVH procedures and more than 6, 000 abdominal or vaginal hysterectomies. When a neck injury resulting from a motor-vehicle accident prevented him from continuing to perform surgery, Dr. Patsner went to law school, graduating in 2003. In 2007, he began teaching law at the University of Houston Law Center and medicine at Baylor College of Medicine. He also taught medicine at Ben Taub Hospital and the Harris County Hospital, where he served as the Assistant Director of Gynecology Oncology Service. In 2011, Dr. Patsner moved to South Korea to teach both law and medicine at Yonsei University. He remained involved in medical research at Baylor and Ben Taub. While in Texas to testify in this case, he collaborated with a Baylor professor of gynecologic oncology on their joint research projects. Three days after testifying, he was scheduled to go to Honduras to join physicians, including a medical oncologist with MD Anderson Cancer Center in Houston, to perform and teach the LAVH procedure.

         Dr. Patsner testified that he was not practicing medicine in South Korea, but the context makes clear that by those words he meant only that he was not seeing patients there because he was not licensed to practice in the country.[11] In giving that testimony, Dr. Patsner was not asked whether he was "practicing medicine" as defined by the TMLA. Even if he had been asked that question, the application of the statutory definition is a legal issue for the court, not a witness. An expert under the TMLA need not be engaged in patient care.[12]

         Focusing on the TMLA test, Dr. Benge argues that while there is evidence that Yonsei Medical School was affiliated with an accredited training hospital, there is no evidence that the school itself was accredited, and thus no evidence that, under the statute, he was "training residents or students at an accredited school of medicine".[13] Dr. Benge also argues that there is no evidence that the physicians Dr. Patsner consulted with were licensed to practice in the United States or were providing patient care, and thus no evidence that he was "serving as a consulting physician to other physicians who provide direct patient care".[14]

         But we have cautioned that while "there is no validity, if there ever was, to the notion that every licensed medical doctor should be automatically qualified to testify as an expert on every medical question", [15] the TMLA's test for "expert qualifications should not be too narrowly drawn".[16]Indeed, the test cannot be rigidly applied because it is expressly nonexclusive. Absent evidence to the contrary, the trial court could fairly infer that Dr. Patsner's teaching position in South Korea was with accredited institutions, and that the physicians with whom he was consulting on LAVH surgery, including an MD Anderson oncologist, were licensed in the United States and providing patient care. The trial court was ...


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