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Dejean v. Wade3/8/2001
Petition for review denied August 2, 2001.
JOEL DEJEAN, APPELLANT
v.
EDWARD C. WADE, M.D. AND EDWARD C. WADE, M.D.,P.A., APPELLEES
On Appeal from the 157 th District Court Harris County, Texas Trial Court Cause No. 97-25563
Panel consists of Chief Justice Murphy and Justices Amidei and Hudson.*fn1
The opinion of the court was delivered by: Paul C. Murphy Chief Justice
REVERSED AND REMANDED AND OPINION FILED MARCH 8, 2001.
OPINION
Joel Dejean ("Dejean"), appellant appeals from a take nothing judgment rendered by the trial court in a medical malpractice case brought against Dr. Edward C. Wade and Edward C. Wade, M.D., P.A. ("Wade"), appellees. We reverse and remand.
In April of 1995, Dejean sought treatment for his vision from Dr. Dunn, an ophthalmologist with Eye Associates of Houston, who referred him to Wade. On May 4, 1995, Wade examined Dejean's eyes and determined that the right eye was permanently damaged by a massive tear in the retina, and Dejean's left retina was showing signs of thinning, which, if left untreated, could produce the same condition that was present in the right eye. Wade recommended a laser procedure to be performed on Dejean's left eye to prevent the retina from tearing away and detaching. Dejean scheduled an appointment for the laser surgery in Wade's office on May 19, 1995.
On May 19, 1995, Dejean arrived at Wade's office, and before the surgery, Dejean signed a consent form for laser treatment for lattice degeneration of the left eye. The consent form warned of, 1) transient blurred vision; 2) transient ocular irritation and inflammation; 3) hemorrhage; 4) complications requiring further treatment; and 5) retinal detachment requiring further surgery. This consent form used by Wade, however, failed to track the requirements as provided by statute. Specifically, laser surgery to the retina is a List A procedure and requires the doctor to warn of partial or total loss of vision. 25 TEX. ADMIN. CODE ยง 601.2 (2000). No warning of partial or total loss of vision appears anywhere on Wade's consent form.
In attempting the laser surgery, Wade encountered difficulty, and made the decision to switch to another procedure, a cryopexy. A cryopexy, because it is still retinal surgery, requires the same disclosures as was required for the laser surgery, namely a warning of partial or total loss of vision. In order to perform the cryopexy, a different form of anesthesia is required than was used for the laser surgery. Appellee decided to use a retrobulbar injection for regional anesthesia. In a retrobulbar injection, a needle is inserted in the eye socket, under the eyeball.
During the retrobulbar injection on Dejean, Wade punctured Dejean's eye while angling the needle down and again while angling the needle up. The puncture of Dejean's eye resulted in scar tissue, and the shrinking of the scar tissue led to retinal detachment that caused Dejean's blindness in his left eye.
At trial, Dejean's proposed jury question regarding informed consent was submitted to the trial court, and refused. Moreover, after all the evidence was presented, but before jury deliberation, the trial court granted a partial directed verdict in favor of appellee on the issue of informed consent, and submitted only negligent treatment to the jury. The jury did not find appellee negligent, and the trial court entered a final judgment on May 21, 1999.
In his sole point of error, Dejean contends that the trial court erred in granting Wade's m
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