X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:The plaintiff, Donna Jacobo, contends that Dr. Nir Binur told her that she would definitely develop breast cancer and that this was the reason she consented to a prophylactic bilateral mastectomy. Jacobo has confined her complaints to her contention that Binur failed to obtain her informed consent to the surgical removal of both her breasts. After a trial in which a jury was unable to agree on a verdict and a mistrial was declared, the trial court granted summary judgment in Binur’s favor. Jacobo appealed, and a divided court of appeals reversed and remanded, concluding that fact issues exist. HOLDING:The court reverses the judgment of the court of appeals and renders judgment for Binur. The court agrees that using headings to clearly delineate the basis for summary judgment under Texas Rule of Civil Procedure 166 subsection (a) or (b) from the basis for summary judgment under subsection (i) would be helpful to the bench and bar, but the rule does not require it. If a motion clearly sets forth its grounds and otherwise meets Rule 166a’s requirements, it is sufficient. Here, Binur’s motion for summary judgment asserted that there was no evidence of proximate cause. The court of appeals erred in concluding that this ground could be disregarded because evidence was attached to the motion. There is evidence that Binur told Jacobo that she would certainly develop breast cancer, and there is evidence that this was not a correct assessment. Binur conceded that it “would not be accurate” to state that “her chance would be a hundred percent” for developing breast cancer, and then responded “No” to the question, “It wouldn’t be proper to say that to a patient like Donna under these circumstances, would it?” The court accepts this evidence as true. But Binur’s erroneous diagnosis or prognosis is not a risk that is inherent in the surgical procedure that Jacobo underwent. It is a diagnosis or prognosis that may be actionable negligence, but it cannot form the basis for a finding that Binur failed to obtain informed consent from Jacobo. Binur offered evidence that Jacobo signed a consent form that identified the surgery for which she was giving consent. She unquestionably knew that her breasts were to be removed, and she does not allege that the mastectomy or the reconstruction was performed in a negligent manner. Jacobo did not present or point to any evidence that there were risks inherent in the surgical procedures themselves about which Binur failed to advise her. Accordingly, the trial court properly granted summary judgment. OPINION:Owen, J., delivered the court’s opinion.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.