The road through Texas appellate courts is littered with plaintiffs’ health-care liability claims and verdicts that have been reversed because of Texas Civil Practice & Remedies Code Chapter 74, which contains most of the state’s most stringent tort-reform policies.
That’s why the Texas Supreme Court’s decision today in Aaron Felton v. Brock Lovett is remarkable: It reverses a lower court decision that itself reversed and rendered a $742,701 jury verdict against a chiropractor for failure to warn about a procedure’s risk.
According to that the high court decision, Aaron Felton filed a Chapter 74 health-care liability claim after allegedly suffering a stroke following his chiropractor Brock Lovett’s forceful manipulation of Felton’s neck. A jury found that Felton’s injuries were not caused by Lovett’s alleged negligence. However, the jury did find that “Lovett failed[ed] to disclose to [Felton] such risks and hazards inherent in the chiropractic treatment.”
Lovett appealed to Amarillo’s 7th Court of Appeals, which examined the case under §74.101 of the code. That provision requires “physicians” to disclose risks associated with medical care and “surgical procedures.”
The 7th Court found that the judgment in Felton’s favor should be reversed. The justices held that Lovett did not have a duty to disclose the risks of treatment because those risks were not “inherent.” Felton then appealed to the Supreme Court.
The high court noted in its decision that, because Lovett is not a physician and cannot perform surgeries, §74.101 does not apply. And when §74.101 does not apply to a case, the common law does, wrote Justice Nathan Hecht in the 8-0 decision in Felton.
“Chiropractors in Texas have long been held to a standard of ordinary care — that of a reasonable chiropractor — including the duty to reasonably disclose risks of treatment,” Hecht wrote in an opinion that reverses the decision and remands it to the 7th Court.
--- John Council