Medical Treatments Which Require ''Disclosure of Risks'' In Texas
The Medical Liability and Insurance Improvement Act creates Texas Medical Disclosure Panel and gives the panel the responsibility to examine all medical treatments and surgical procedures to determine which treatments and procedures require disclosure of risks and hazards to a patient. See id. 6.04(a);.
The Texas Medical Disclosure Panel publishes two lists.
List a contains the treatments and procedures requiring disclosure of risks;
List B contains treatments and procedures not requiring disclosure of risks. See TEX. REV. CIV. STAT. ANN. art. 4590i, 6.04(b).
For all List a procedures, the panel determines which risks must be disclosed, the degree of disclosure required, and the general form and substance of such disclosure. See id. 6.04(c).
Before a patient gives consent to a List a procedure, the physician must disclose to the patient the risks and hazards involved in that kind of care or procedure. See id. 6.05.
A physician who discloses to a patient the risks of a List a procedure in the substance and form prescribed by the panel "shall be considered to have complied" with the Act. See id. 6.05, 6.06.
Disclosure made as prescribed for a List a procedure "shall create a rebuttable presumption that the requirements of [the Act] have been complied with." Id. 6.07(a)(1).
The presumption of proper disclosure may be rebutted only by showing the invalidity of the consent form, such as by proving the patient's signature was forged or the patient lacked capacity to sign. See Earle v. Ratliff, 998 S.W.2d at 891-92 (Tex. 1999).
Physicians and surgeons have a duty to make reasonable disclosure to patients of risks that are incident to medical diagnosis and treatment. Wilson v. Scott, 412 S.W.2d 299, 301 (Tex. 1967) (op. on reh'g).
At common law, the plaintiff had the burden to prove by expert medical evidence what a reasonable medical practitioner of the same school, in the same or similar community, and under the same or similar circumstances would have disclosed to his patient about the risks incident to a proposed diagnosis or treatment. See id. at 302.
Thus, at common law, physicians set the standards against which their conduct would be measured in a malpractice suit. See Peterson v. Shields, 652 S.W.2d 929, 930 (Tex. 1983).
Under the Act, the panel, which is composed of six physicians and three lawyers, determines the risks to be disclosed. See TEX. REV. CIV. STAT. ANN. art. 4590i, 6.03(c), 6.04(a), (b) (Vernon Supp. 2000).
The Act, therefore, perpetuates the common law scheme of allowing physicians to set the standard for determining what risks should be disclosed to patients for List a medical procedures.
The panel identifies the risks common to all patients, but does not consider the specific circumstances of any individual patient.
This restricts a patient's common law remedy in some circumstances.
The Act provides a rebuttable presumption of negligence if a physician does not notify a patient of the risks for List a procedures in the form and substance prescribed by the panel. See id. 6.07(a)(2).
The Act, therefore, also benefits an injured patient by making it easier to prove medical negligence when a physician fails to disclose the risks the panel has identified.
We conclude this quid pro quo, which produces less frequent but more certain recovery, renders the Act an adequate substitute for purposes of the open courts guarantee. Cf. Garcia, 893 S.W.2d at 521 (upholding validity of statute that provides smaller but more certain recovery to injured workers).
Furthermore, the restriction created by the statute is not unreasonable when balanced against the purpose and basis of the Act. See generally TEX. REV. CIV. STAT. ANN. art. 4590i, 1.02 (Vernon Supp. 2000).