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 Nov. 30 decision in Aaron Felton v. Brock Lovett is remarkable: It reverses an intermediate appellate court decision that itself reversed and rendered a $742,701 jury verdict against a chiropractor for failure to warn about a procedure’s risk.

“I got a couple of email this morning that said, ‘Wow,’ ” said Cynthia Hollingsworth on the day the decision was released. A partner in Dallas’ Hollingsworth Walker, she represents plaintiff Aaron Felton.

According to the high court’s 8-0 decision, 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 Texas Civil Practice & Remedies Code §74.101. That provision requires “physicians” to disclose risks associated with medical care and “surgical procedures.”

The 7th Court reversed the judgment in Felton’s favor. 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, arguing that §74.101 should apply to the case, and in the “unlikely event” the court decided that the statute did not apply, “Dr. Lovett had a common law duty to properly inform his patients,” according to Felton’s Nov. 29, 2011, reply brief in the case.

Lovett argued in his Nov. 11, 2011, reply brief that the high court should uphold the 7th Court’s decision because “the court of appeals correctly ruled that Dr. Lovett owed no duty of disclosure,” among other things.

The high court noted 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 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.

The decision makes some important clarifications on how tort law applies to chiropractors, Hollingsworth says.

“I think it’s good precedent. It establishes once and for all there is a duty,” Hollingsworth says. “It’s been established that chiropractors have a duty to disclose the risk.”

Scott P. Stolley, a partner in Dallas’ Thompson & Knight who represents Lovett, did not return a call for comment.

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