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763 S.W.2d 407

32 Tex.Sup.Ct.J. 165

McKinley v. Stripling

Texas Supreme Court

Decided January 11, 1989

Texas Supreme Court · decided 1989-01-11

Key passage — most relied on by later courts

“In a suit against a physician or health care provider involving a health care liability claim that is based on the failure of the physician or health care provider to disclose or adequately to disclose the risks and hazards involved in the medical care or surgical procedure rendered by the physician or health care provider, the only theory on which recovery may be obtained is that of negligence in failing to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent.”

quoted by 5 later decisions, including Hollis v. United States, Greene v. Thiet

“1. That the physician or health care provider failed to disclose a risk or hazard of the procedure; 2. That the risk or hazard not disclosed was inherent in the procedure; 3. That the risk or hazard was material in the sense of one which could influence a reasonable person in making a decision to give or withhold consent to the procedure; 4. That the patient actually developed the risk or hazard not disclosed; and 5. That the failure to disclose the risk or hazard was a proximate cause of injury to the patient.”

quoted by 1 later decision, including Jacobo v. Binur

Relies on Wilson v. Scott · Peterson v. Shields · Barclay v. Campbell

Good law ✅— No negative treatment on recordhow we know

Decided 1989-01-11

How this case has been cited

Cited by 50 later decisions — most recently February 2013 · most notably Cosgrove v. Grimes (1989), Diamond Shamrock Refining & Marketing Co. v. Mendez (1992)

4 federal appellate · 42 state decisions

2501989199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

MAUZY, Justice,

¶1dissenting.

¶2I am compelled to dissent. So often this court has spoken of stare decisis and the stability of the law, yet in this instance the court ignores both legislative-made law and the court-made common law as announced in its previous opinion in Barclay v. Campbell, 704 S.W.2d 8 (Tex.1986).

¶3Lack of informed consent is now a statutory cause of action created by the legislature, not a common-law cause of action created by this court. The 65th Legislature in 1977 enacted a statutory scheme for informed consent actions which replaced the common-law action of informed consent. Tex.Rev.Civ.Stat.Ann. art. 4590i, § 6.02 (Vernon Supp.1989). The statutory scheme shifted the focus from what a reasonably prudent doctor would disclose to his patient to what information is needed by a reasonable patient in making a decision to give or withhold consent for a particular medical procedure. Compare Barclay v. Campbell, 704 S.W.2d 8 (Tex.1986) with Wilson v. Scott, 412 S.W.2d 299 (Tex. 1967). The interjection of a traditional common-law negligence proximate cause issue into this statutory cause of action would effectively repeal the action of the legislature and resurrect and reinstitute the old court-made physician-oriented standard. Wilson, id. at 302.

¶4Both the legislature by statute and this court through case law have fashioned this cause of action, including the issues which must be submitted to the jury to establish causation. The statute anc| this court in Barclaydelineated the causation issues required to be submitted to the jury in a statutory informed consent action to ensure that an adequate causal connection has been found between the physician’s failure to disclose risks and the resulting harm to the patient. A patient bringing a cause of action for lack of informed consent under Tex.Rev.Civ.Stat.Ann. art. 4590i, § 6.02 must establish: (1) that the physician or health care provider failed to disclose the risks or hazards of the procedure; (2) that such risks or hazards were inherent in the procedure; (3) that the risk is material in the sense that it could influence a reasonable person’s decision to consent to the procedure, and (4) that the patient actually developed the nondisclosed risks or hazards. Barclay, 704 S.W.2d at 8; Peterson v. Shields, 652 S.W.2d 929 (Tex.1983).

¶5*411Litigants should be able to confidently rely on the opinions handed down by this court and rely on the procedural rules mandated by its opinions. At the urging of McKinley, the trial court followed the mandate of this court and the legislature in submitting the causation issues to the jury only to find the rug pulled out from under her. The court’s holding in this case flies in the face of the idea that statutes should be strictly construed to follow legislative intent. For these reasons, I dissent.

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