Texas Supreme Court rules chiropractor was negligent for failing to disclose stroke risk from neck manipulation

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by Jay Pate

Health care must be based on a patient’s informed consent, and a health care provider may be liable for failing to disclose to a patient the risks inherent in proposed treatment. The issue before the Texas Supreme Court in Felton v. Lovett, NO. 11-0252, was whether a health care provider owed a duty to disclose the possibility that a patient could suffer a severe, negative reaction to a procedure because of an undetectable physical condition. Specifically, the issue was whether a chiropractor owed a duty to disclose the possibility that a properly performed chiropractic neck manipulation could nonetheless cause a stroke if the patient had an unhealthy vertebral artery.

Aaron Felton sought treatment for neck pain from Brock Lovett, a doctor of chiropractic. Lovett obtained a history, x-rayed Felton’s cervical spine, and on two occasions, manipulated his neck. When the treatments did not provide relief, Lovett performed a more forceful manipulation on Felton’s third visit. Felton immediately began experiencing blurred vision, nausea, and dizziness. Lovett called an ambulance, which took Felton to the hospital, where doctors determined that he had suffered a stroke resulting from a vertebral artery dissection. Felton sued, alleging that Lovett had failed to disclose the risks associated with the neck manipulations and was negligent in treating him.

Claims against physicians in Texas are governed by Section 74.101 of the Texas Medical Liability Act, which states:

In a suit against a physician or health care provider involving a health care liability claim that is based on the failure of the physician or health care provider to disclose or adequately disclose the risks and hazards involved in the medical care or surgical procedure rendered by the physician or health care provider, the only theory on which recovery may be obtained is that of negligence in failing to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent.

Although Lovett is a “health care provider,” he is not a physician and “medical care” and “surgery” can be provided only by physicians. Thus, Felton’s suit against Lovett was not based on a failure to disclose the risks of “medical care or surgical procedure” and was not covered by Section 74.101.

Instead, the Texas Supreme Court applied the common law rule regarding informed consent. The Court found that, just like the Medical Liability Act, the common law rule “is based upon the patient’s right to information adequate for him to exercise an informed consent to or refusal of the procedure. The nature and extent of the disclosure depends upon the medical problem as well as the patient.”

At trial, Felton offered expert testimony that:

  • vertebral artery dissection is a known risk of neck adjustments but occurs only if the patient’s artery is unhealthy or if the adjustment is performed improperly
  • chiropractors have been aware of the risk for a long time
  • there are safer alternatives to manual adjustment that do not run the risk of stroke
  • about 10 to 20% of vertebral dissections are preceded by chiropractic manipulation of the spine
  • it was “much more likely than not” that Felton’s vertebral dissection resulted from Lovett’s chiropractic treatment
  • the standard of care calls for a chiropractor to inform a patient of the risks associated with neck adjustments and
  • Lovett breached this standard of care by not disclosing to Felton the risk of vertebral artery dissection

The evidence showed that Lovett was well aware of the risk of stroke from chiropractic neck manipulation. Indeed, the very morning he treated Felton, Lovett had been reading an article on the subject. And, Lovett previously had a patient who suffered a vertebral dissection.

The jury failed to find that Lovett negligently performed the manipulation. However, the jury did find that:

  • “Lovett fail[ed] to disclose to [Felton] 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”;
  • “a reasonable person [would] have refused such treatment if those risks and hazards had been disclosed”; and
  • “Felton [was] injured by the occurrence of the risk or hazard of which he was not informed.”

Based on the jury’s award of damages, the trial court entered a judgment in favor of Felton for $742,701.90.

Felton appealed to the Amarillo Court of Appeals. The court of appeals decided that the risk of stroke was not inherent in Lovett’s treatment but rather only occurred because of Felton’s own physical condition — an unhealthy vertebral artery. Thus, the court of appeals felt there was no duty to warn and rendered judgment in favor of Lovett.

The Texas Supreme Court has now reversed the court of appeals. The Supreme Court held that the court of appeals decision:

… ignores the evidence that 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. Felton’s injury occurred during treatment, as a direct result of treatment. The same kind of injury may occur in other patients undergoing the same kind of treatment. The risk that a patient will not respond well to treatment is clearly one that inheres in the treatment. And as the evidence indicated, and the jury found, the possibility of vertebral artery dissection and stroke is precisely the kind of information a reasonable patient would be expected to want to know before deciding whether to risk such severe consequences in order to alleviate neck pain.

Felton v. Lovett, NO. 11-0252 (emphasis added).

The Supreme Court explained that health care providers are only obligated to disclose “inherent risks,” not “extraneous risks.”

Malpractice, for example, is an extraneous risk, one that inheres in the practice of health care, not in the care itself. Thus, the inherent risks of surgery do not include the possibility that it may be based on an erroneous diagnosis or prognosis, or that is negligently performed. Another example is the risk that a drug used in treatment may be defective; that risk inheres in the drug’s manufacture, not in its use in treatment. On the other hand, the risk that surgery may result in injury, even if properly performed, is inherent in the procedure itself. An example is cutting or traumatizing a nerve adherent to a lymph gland being biopsied. Inherent risks of treatment are those which are directly related to the treatment and occur without negligence. They do not include eventualities or non-treatment-specific injuries, such as the possibility of hospital infections, or complications which occur without particular regard to the treatment the patient receives. They do include side effects and reactions, whether likely or only possible, that are directly related to the treatment provided.

Felton v. Lovett, NO. 11-0252 (emphasis added).

The full opinion in Felton v. Lovett is available online at: http://www.supreme.courts.state.tx.us/historical/2012/nov/110252.pdf