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BLAKESLEY v. WOLFORD

May 1, 1987

Terri Blakesley
v.
Larry M. Wolford, et al.


Huyett, J.


The opinion of the court was delivered by: HUYETT

HUYETT, J.

 Background

 This dental malpractice case was tried to a jury in 1984 under Pennsylvania law. The jury returned a verdict for the plaintiff in the amount of $ 800,000. On appeal, the Third Circuit held that Pennsylvania and Texas law "reflect and promote fundamentally different principles and interests," and that Texas law should have been applied to this case. Blakesley v. Wolford, 789 F.2d 236, 240, 243 (3d Cir. 1986). Texas law reflected "that state's policy to limit medical malpractice claims within prescribed bounds in an effort to control health care costs and promote the general accessibility of health care in Texas." Id. at 240. The Third Circuit noted differences between Texas and Pennsylvania law with respect to their approaches to informed consent and their compensation policies. The court of appeals reversed the judgment entered in favor of the plaintiff and remanded for a new trial, with directions that Texas law be applied to "all issues."

 Plaintiff subsequently filed a motion to recall the mandate and amend the judgment on the ground that the law of Texas was not as the parties and the Third Circuit had believed it to be throughout the prosecution of the appeal. The plaintiff's motion was denied without comment. However, Judge Bissell issued a short concurrence noting his view that "our remand 'for a new trial' should not be construed to preclude the district court from hearing and deciding on a motion in limine the very issues raised in the motion which this court denies here."

 Plaintiff has now filed a motion in limine to reinstate judgment. Plaintiff does not dispute the applicability of Texas law to this case, but argues that, under Texas law, the trial was without error.

 For the reasons which follow, I will deny the motion to reinstate judgment.

 The "Changes" in Texas Law

 A. Informed Consent

 The Third Circuit found that Texas law was "markedly different" from Pennsylvania's lay approach to informed consent. *fn1" The Third Circuit understood Texas law to focus

 
on what the physician believes should be disclosed, not what the patient might wish to know, as in Pennsylvania.
 
Under Texas law, a Medical Disclosure Panel . . . is empowered to determine the specific risks and hazards peculiar to a particular medical procedure which must be disclosed to the patient. [Tex.Rev.Civ.Stat. Ann. art. 4590i], § 6.03 et seq. Once the Panel has determined the proper level of disclosure, and it is shown that the physician has met that level of disclosure in a particular case, a rebuttable presumption is established that the operation was conducted with the patient's informed consent. Conversely, if the physician fails to disclose the information mandated by the Panel, a rebuttable presumption that the procedure was performed in the absence of the patient's informed consent is established. Where the Panel has not established the requisite disclosure for a specific medical procedure, then the level of informed consent required of the doctor is that which a reasonable doctor with defendant's experience would have disclosed to the patient in similar circumstances. Wilson v. Scott, 412 S.W.2d 299 (Tex. 1967).

 Blakesley, 789 F.2d 236, 239-40 (emphasis added).

 Prior to the Third Circuit's opinion, in a decision which counsel failed to bring to the attention of the court, the Texas Supreme Court had effectively overruled the Wilson precedent. Section 6.07(b) of the statute provides that where the Panel has not established the requisite disclosure, the doctor is under "the duty otherwise imposed by law." In 1983, the Texas Supreme Court held that the duty imposed by section 6.02 of the statute was not the duty imposed by Wilson, but the duty "to disclose all risks of hazards which could ...


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