Benge v. Williams

472 S.W.3d 684

Jim P. BENGE, M.D., and Kelsey–Seybold Medical Group, PLLC, Appellants

v.Lauren WILLIAMS, Appellee.

No. 01–12–00578–CV.

Court of Appeals of Texas, Houston (1st Dist.).

Nov. 18, 2014.

Supplemental Opinions on Denial of En Banc Reconsideration Sept. 22, 2015.

David George, Earnest W. Wotring, Amy Nilsen, Connelly*Baker*Wotring LLP, Houston, TX, for Appellants.

Randall O. Sorrels, Chelsie King Garza, Abraham, Watkins, Nichols, Sorrels, Agosto & Friend, Lucy H. Forbes, The Forbes Firm, PLLC, Houston, TX, for Appellee.

Panel consists of Justices KEYES, BLAND, and BROWN.

OPINION

HARVEY BROWN, Justice.

Dr. Jim Benge and his employer, Kelsey–Seybold Medical Group, PLLC, appeal from an adverse jury verdict finding that Dr. Benge's medical negligence caused a perforation of Lauren Williams's bowel during a hysterectomy. Dr. Benge and Kelsey–Seybold (collectively Dr. Benge) raise three issues challenging the judgment against them. First, Dr. Benge contends that Williams's expert on the applicable medical standard of care was statutorily disqualified. Second, Dr. Benge argues that the jury charge commingled in one broad-form submission two theories of negligence—negligent surgical technique and negligent failure to obtain the patient's informed consent—over his objection, resulting in harmful error. Third, Dr. Benge asserts that the trial court erred in refusing to allow periodic payment of future medical expenses.

We first consider whether the trial court abused its discretion in allowing Williams's expert on the standard of care to testify; we hold that it did not. We next consider whether the jury charge impermissibly combined valid and invalid theories of liability into a single liability question. Because we conclude that it did and that Dr. Benge preserved the error for appeal, we reverse and remand the cause for a new trial. As a result, we do not reach the issue of periodic payments.

Background

Williams brought this health care liability case following a hysterectomy. The hysterectomy was performed by Dr. Benge, a board-certified obstetrician and gynecologist who has practiced with Kelsey–Seybold since 2000. Dr. Benge was assisted by Dr. Lauren Giacobbe, a third-year obstetrical/gynecological resident in Methodist Willowbrook Hospital's four-year residency program. It is undisputed that Williams's bowel was perforated as a result of the hysterectomy.

A. Williams's hysterectomy, complications, and subsequent surgeries

Dr. Benge first saw Williams, then age 39, in June 2008, two months before her surgery. Williams discussed her symptoms, including chronic and "excruciating" pain during her menstrual period. Dr. Benge diagnosed Williams with uterine fibroids, dysfunctional uterine bleeding, and pelvic pain. After consulting with Dr. Benge, Williams elected to undergo a laparoscopic-assisted vaginal hysterectomy (LAVH) to remove her uterus, ovaries, and fallopian tubes.

Dr. Benge next met with Williams one week before the LAVH surgery. Dr. Benge discussed the procedure and presented her with written disclosure and consent forms that they reviewed together. The consent forms—which tracked the requirements imposed by the Texas Legislature—set forth surgical risks associated with the LAVH procedure, including, among other things, damage to the bowel, the injury that formed the basis for Williams's claim. The consent forms also stated that Dr. Benge could use such "associates, technical assistants and other health care providers as [he] may deem necessary" during the surgery and that those assisting Dr. Benge may include "residents" who could "perform important tasks" during the surgery "under the supervision of a responsible physician." Dr. Benge testified that during this visit he told Williams that he "would be doing the surgery with an assistant." Williams disputes that contention. She testified that he did not tell her there would be an assistant. Although it is disputed whether Dr. Benge mentioned using an assistant in the procedure, the parties agree that Dr. Benge did not tell Williams that he would be assisted by someone with no prior experience assisting on an LAVH procedure.

Williams signed the consent forms and agreed in writing to proceed with the planned LAVH surgery. Dr. Benge performed the LAVH procedure on the morning of August 26, 2008, with Dr. Giacobbe assisting. While Dr. Giacobbe had significant experience with hysterectomies and laparoscopic surgeries, she had not previously assisted an LAVH surgery. 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 did not identify the surgical tasks she would perform; she testified that she did not know those details until after the surgery began. Williams disputed Dr. Giacobbe's testimony. She testified that she did not speak with Dr. Giacobbe on the morning of her surgery. Williams further testified that she would not have undergone the surgery if she had been informed that it was Dr. Giacobbe's first time assisting an LAVH surgery.

The amount of assistance provided by Dr. Giacobbe was disputed. An LAVH operation is divided into two parts: the laparoscopic part, followed by the vaginal part. The post-operative report does not indicate which physician performed which portion of the procedure. Dr. Giacobbe testified that Dr. Benge remained at all times "in control of the patient's care and directing" the surgery. She estimated that she performed approximately 40% of the surgery and did so under Dr. Benge's direction and supervision. In a document she signed after the surgery that was maintained to monitor the resident's experiences, however, she reported that she was "the surgeon," which required her to perform 50% or more of the surgery. Dr. Benge estimated that Dr. Giacobbe performed 40% or less of the surgery. He testified that the standard of care is "for the attending physician to decide, based on [the resident's] skill-set, what is appropriate for her to do."

During the laparoscopic part of the LAVH, Dr. Benge stood on the right side of Williams while Dr. Giacobbe stood on the left. Dr. Benge demonstrated each step of the operation to Dr. Giacobbe and showed her "how to use the instruments and what to do." Dr. Giacobbe would then repeat the same thing on the left side—the side where Williams was determined to have a perforation—while Dr. Benge observed.

Upon completion of the procedure, Dr. Benge examined the surgical area but saw no signs that Williams's bowel had been perforated. He noted no complications in the post-operative report. Within hours of the surgery, Williams began to complain of severe pain, abdominal tenderness, and nausea. Later that day, rectal bleedingwas discovered. By the time Dr. Benge saw Williams on the morning following the LAVH procedure, she had a fever and was anemic, tachycardic, and in constant pain. According to Dr. Benge, nothing about Williams's condition at that time indicated that she had a perforated bowel. He started her on intravenous antibiotics and ordered an x-ray of her chest to ensure that she did not have pneumonia. He did not see her again that day because he went home ill; instead, Dr. Carmen Thornton took over Williams's care.

Williams's post-operative condition continued to deteriorate: her hemoglobin and hematocrit levels fell significantly, she required a multi-unit blood transfusion, and she experienced constant pain. Three days post-surgery, Dr. Thornton ordered a consultation from a gastroenterologist, who performed an emergency exploratory surgery that night and determined that Williams had an undiagnosed bowel perforation that was allowing feces from Williams's intestines to leak into her abdomen. The doctors repaired the perforation, but a colostomy was required.

Afterwards, she was moved to ICU and placed in a chemically-induced coma. Williams subsequently developed sepsis and underwent a tracheotomy. A mechanical ventilator was required. Williams remained comatose at the hospital for three weeks. She was discharged on October 1, 2008, and transferred to Kindred Rehabilitation Hospital. When she left Kindred the next month, she required home health assistance and was unable to work.

Williams had a second surgery in May 2009 in an effort to reverse the colostomy. This procedure could not be completed successfully; therefore, the colostomy was replaced with an ileostomy. Three months later, Williams had her third post-LAVH surgery to replace the ileostomy with another colostomy ; the surgery was successful, but the colostomy became permanent. Williams has had two additional surgeries since then to address complications related to the colostomy.

B. Possible causes of Williams's perforated bowel

One week after Williams's LAVH, Dr. Benge wrote an e-mail to Dr. Giacobbe stating his theory of how the bowel injury occurred. Specifically, he stated that the injury likely resulted from "an electrical arc from the BOVIE,¹ not a sponge stick or the weighted speculum."² According to Dr. Benge, during the vaginal portion of the surgery, the weighted speculum was touching the area where the bowel perforated. Dr. Benge opined that an arc of electricity went from the BOVIE through the weighted speculum, causing a "thermal injury" to Williams's bowel tissue below. Even though no immediate damage to the bowel tissue was visible at the time of the surgery, Dr. Benge theorized at trial that an electrical arc from the BOVIE could have caused the inflammation, tissue breakdown, and bowel perforation Williams experienced. While neither Dr. Benge nor Dr. Giacobbe saw an electrical arc during the surgery, Dr. Benge testified that it is possible for an arc to pass from the BOVIE without being seen.

Dr. Bruce Patsner, a...