In a 2012 opinion that seemed to get little attention, the Texas Supreme Court did a rare thing—ruling in favor of a medical malpractice plaintiff.
Although there’s some welcome evidence that times are changing in the intermediate appellate courts, over the past two decades the Texas Supreme Court has routinely found novel ways to reverse jury verdicts in favor of victims of medical malpractice.
On November 30, 2012, the Texas Supreme Court took a surprising turn in its opinion in the case styled Aaron Felton v. Brock Lovett, D.C., No. 11-0252, on appeal from the 7th Court of Appeals.
Vertebral artery dissection and stroke are common with chiropractic medical malpractice
The patient, Aaron, sued his chiropractor, Dr. Lovett, over a set of circumstances that I’m very familiar with from my experience as a Houston, Texas medical malpractice lawyer.
Aaron had neck pain and went to his chiropractor. Dr. Lovett offered neck manipulation treatment. Things worked out okay for two treatments, but when Aaron didn’t feel relief from his neck pain, Dr. Lovett did a more forceful neck manipulation on Aaron’s third visit to the chiropractic clinic.
As soon as Dr. Lovett manipulated his neck, Aaron immediately had the classic symptoms of vertebral artery dissection:
• Blurred vision
• Nausea
• Dizziness
The vertebral arteries run along the neck into the skull, around the same location where chiropractors perform neck manipulations. When they use too much force, they can tear or dissect the artery, causing a vertebral artery dissection, resulting in a stroke.
Dr. Lovett was well-aware of the risk of stroke from performing a forceful chiropractic neck manipulation. In fact, at trial, he even testified that he had read an article about this risk the very morning that he manipulated Aaron’s neck.
The chiropractor quickly called 911 and an ambulance took Aaron to the hospital, where he was diagnosed with a stroke from a vertebral artery dissection.
Aaron filed a medical malpractice lawsuit, alleging both negligence and the lack of informed consent.
Informed consent is the mandatory medical-legal process where a doctor must obtain a patient’s informed permission before proceeded with treatment. The important word in informed consent is informed. The doctor must inform the patient of the risks and benefits of treatments, alternative treatments, and doing nothing.
The Texas Supreme Court noted the expert testimony at trial, including:
• Vertebral artery dissection is a known risk of neck adjustments but occurs only if the patient’s artery is unhealthy or if the chiropractor doesn’t perform the adjustment properly.
• Chiropractors have known about the risk for a long time.
• There are safer alternative treatments that don’t have the risk of stroke.
• About 10-20% of all vertebral dissections are caused by chiropractic manipulation.
• The standard of care requires chiropractors to inform patients of the risks associated with neck adjustments or manipulations before performing them.
At trial, the jury found that the chiropractor did not obtain informed consent before doing the neck manipulations. To pursue a claim for lack of informed consent successfully, a plaintiff must prove that:
(1) the doctor failed to disclose such risks and hazards inherent in the chiropractic treatment that could have influenced a reasonable person in making a decision to give or withhold consent to such treatment;
(2) a reasonable person would have refused such treatment if those risks and hazards had been disclosed; and
(3) the patient was injured by the occurrence of the risk or hazard of which he wasn’t informed.
The trial court entered a verdict in Aaron’s favor, but the chiropractor appealed to the Amarillo Court of Appeals, which reversed the trial court and rendered judgment in the chiropractor’s favor. The Texas Supreme Court then accepted the case under a petition for review.
The Supreme Court’s analysis centered under what risks were “inherent” in treatment, noting that an inherent risk is one that “exists in and is inseparable from the procedure itself.” The court elaborated that, “the risk that surgery may result in injury, even if properly performed, is inherent in the procedure itself. . . . Inherent risks of treatment are those which are directly related to the treatment and occur without negligence.”
The court’s analysis of the evidence is striking and, to me, frightening to think about in the context of chiropractic neck manipulations: “Felton’s injury also would not have occurred but for Lovett’s treatment, that chiropractic neck manipulation can result in vertebral artery dissection and does so in a significant number of cases, and that dissection and stroke are known risks of chiropractic treatment that should be disclosed.”
Based on the failure of the chiropractor to disclose the risks of neck manipulation to the patient, the Texas Supreme Court found in favor of the patient, reversing and remanding the judgment of the court of appeals.
What you can do
If you’ve been seriously injured by chiropractic medical malpractice, then contact a top-rated experienced Houston, Texas medical malpractice attorney for help in evaluating your potential case.
