An appeals court in Harris County recently added to the body of law in favor of malpractice lawsuits for doctors who administer dangerous drugs without the consent of their patients. In this instance, the family of the deceased patient claim that not only did the doctor completely fail to get the patient’s consent, but also that the drug directly contributed to the patient’s untimely death. Continue on for details about the case, and contact a knowledgeable Texas medical malpractice attorney with any questions or if you have suffered from medical malpractice.
Doctor administers “highly toxic drug” without consent of patient, patient dies
A patient was admitted to a hospital in Tomball, Texas, complaining of shortness of breath. An oncologist evaluated her white blood cell count and then instructed hospital staff to conduct a bone marrow biopsy as well as administer a “highly toxic drug” used for the treatment of leukemia. The doctor ordered the drug to be given several more times. The family of the patient allege that at no point did the doctor seek the patient’s consent for the administration of the drug. A week later, the patient died.
The family of the deceased patient sued the doctor and the hospital for negligence in a case titled Arani v. Fisher, et al. The plaintiffs offered an expert opinion arguing that the doctor failed to get informed consent, thereby breaching the standard of care for physicians in Texas, and that the administration of the drug led to the conditions that caused the patient’s death.
The defendants moved to dismiss the case pursuant to the Texas Medical Liability Act (TMLA), claiming that the expert report provided by the plaintiffs was inadequate to establish causation, a requirement for a negligence lawsuit. The defendants argued that the plaintiff’s expert (1) failed to establish that a reasonable person would have refused to take that drug to reduce white blood cell count, and (2) failed to explain how disclosing the risks of the drug would have changed the outcome to the patient.
Appellate court finds sufficient causation for a “no consent” claim for medical battery
The appellate court noted the differences between alleging “no consent” and alleging “no informed consent.” A successful claim of “no informed consent” requires showing that the patient’s outcome would have changed if the doctor had adequately disclosed the risks and hazards of medical care, i.e., that a reasonable person may have changed their mind about treatment. Alleging “no consent” is more akin to a claim of battery–the injury is successfully alleged by showing that the doctor performed an unwanted procedure without any consent by the patient, and the doctor may be liable for any further injury caused by that unwanted procedure.
The court found that, in this case, the doctor entirely failed to seek consent, establishing this as a “no consent” case of medical battery. The expert report states that had the doctor sought the patient’s consent, she would have refused the drug, would have been discharged, and would not have died a week later. The court found this sufficient to allege causation and overcome a motion to dismiss, and to allow the case to proceed.
If you suspect that you or someone you love has been the victim of medical malpractice in Texas, contact the passionate, skilled, and dedicated Houston medical malpractice lawyer Charles J. Argento for a free consultation on your case at 713-225-5050.