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Click here for the full text of this decision FACTS:Valerie Bryan sued Dr. Denton Watumull for medical malpractice based on his alleged failure to obtain her informed consent before performing a surgical procedure to address symptoms of carpal tunnel syndrome. Bryan filed suit on Sept. 5, 2002. Because Bryan filed her claim before the repeal of Texas Revised Civil Statutes Art. 4590i, the provisions of Art. 4590i in effect at the time of the filing of her suit governed the case. The trial court granted Bryan leave to file an amended pleading adding additional negligence claims. Before trial, however, the court dismissed all of Bryan’s claims except for her claim for lack of informed consent. The trial court granted a directed verdict in favor of Watumull on the issues of malice and gross negligence, and the jury returned a take-nothing verdict in favor of Watumull on the informed consent claim. The trial court rendered judgment for Watumull on Sept. 18, 2005, based on the jury’s verdict. HOLDING:Affirmed. In her first issue, Bryan claimed the trial court committed harmful error in submitting jury question number one and the accompanying instruction on the legal requirements of informed consent, because it misstated the law. For an instruction to be proper, the court stated, it must: 1. assist the jury; 2. accurately state the law; and 3. find support in the pleadings and evidence. An instruction that misstates the law as applicable to the facts or one that misleads the jury is improper. At trial, Bryan argued that Watumull was negligent for failing to tell her prior to the surgery that reflex sympathetic dystrophy (RSD) was a potential risk of the surgical procedure. Bryan testified that after the surgery she experienced excruciating pain that eventually spread throughout her entire body and was not aided by pain medication. Two physicians she consulted after the surgery diagnosed her with RSD. Bryan insisted she never would have undergone the operation had Watumull explained to her before the surgery that RSD was a risk of the operation. According to Texas Administrative Code �601.2(m)(4), RSD is not one of the risks that must be disclosed for peripheral nerve surgery. Therefore, the court found that Watumull had no duty to disclose the risk of RSD and could not be held liable for a lack of informed consent. The court also found that Bryan failed to properly preserve the error in regard to the jury charge, so there was nothing for it to review. Next, Bryan claimed that the trial court erred in not granting her motion for an instructed verdict, because legally insufficient evidence support the jury’s response to a question in the charge. The type of operation performed on Bryan required disclosure of the risks of numbness, impaired muscle function, recurrence or persistence of the condition that required the operation, and continued, increased or different pain. Bryan argued that her failure to check boxes next to the list of specific risks proved that her consent was not in compliance with Art. 4590i. Article 4590i, however, does not mandate any particular format for the consent form and does not require the boxes to be checked for the form to comply with the statute, the court stated. After reviewing the evidence under the appropriate standard of review, the court concluded that legally sufficient evidence supported the jury’s adverse finding that Watumull obtained Bryan’s informed consent before performing the surgery and that Bryan failed to establish the contrary finding as a matter of law. The court also found the evidence factually sufficient. In addition, Bryan claimed that the trial court erred in dismissing her claims that Watumull was negligent in deciding to perform the surgery and in failing to provide adequate followup care. Because Bryan’s expert reports and accompanying curriculum vitae did not show that her expert had any surgical training or experience, the court stated that the trial court could have concluded the report did not represent a good faith effort to comply with the statutory requirements under Art. 4590i for an expert report. Therefore, the court found that the trial court did not abuse its discretion in granting Watumull’s motion to dismiss. OPINION:Mazzant, J.; Morris, Francis and Mazzant, JJ.

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