“Because Earl’s claims are for negligence based on the performance of unnecessary surgeries, Earl is not required to meet the causation requirements for an informed consent claim.”
How later courts described this case
- “Because Earl’s claims are for negligence based on the performance of unnecessary surgeries, Earl is not required to meet the causation requirements for an informed consent claim.”
Written by the judges who cited it.
The opinion
GREEN, Justice,
dissenting on motion for rehearing.
After reviewing the briefs on rehearing, I am persuaded I was wrong to join the panel decision. Accordingly, I respectfully dissent to the refusal of the majority to grant rehearing.
The majority relies on Dr. Rothkopfs testimony to show the surgeries were unnecessary due to Marguerite’s terminal condition and, by inference, that damages resulted. However, there is a gaping hole in the majority’s analysis. The majority relies on the unfounded assumption that Marguerite would not have had the surgery if she had known of her terminal cancer, which assumption is necessary to the success of appellant’s claim.
Even if there is a fact issue regarding the need for surgical intervention in light of Marguerite’s terminal condition and setting aside the question of whether damages can be inferred from the fact of unnecessary surgery, what has been overlooked is that the ultimate decision whether to forego or 'proceed with surgery rested exclusively with Marguerite.
It is reasonable that Marguerite, aware of her terminal cancer, would have decided to forego surgery; however, it is also reasonable that she would have decided to proceed with the surgery. Marguerite knew her coronary condition, if left untreated, was severe enough to risk a debilitating heart attack or stroke. Indeed, Dr. Kelley was so alarmed by Marguerite’s coronary artery disease, he performed bypass surgery within a day of discovering her condition. The endarterectomy also served to reduce the risk of stroke. Marguerite might have decided to proceed with the surgery in spite of her cancer to avoid the risk of a debilitating heart attack or stroke in the time she had left.
No witness had any knowledge of Marguerite’s wishes or intentions in this regard so, at best, any assumption about what Marguerite would have done had she known of her terminal illness is based on no more than conjecture. See Litton Indus. Products, Inc. v. Gammage, 668 S.W.2d 319, 324 (Tex.1984) (“When circumstances are consistent with either of [] two facts and nothing shows that one is more probable than the other, neither fact can be inferred.”). It is always difficult, and often impossible, to determine in hindsight the true wishes of a person who has become deceased. There are obvious eviden-tiary problems. But without clear and competent evidence, any post-mortem attempt to determine the decedent’s actual intent is a meaningless exercise. Indeed, this court has said-so. See Longaker v. Evans, 32 S.W.3d 725, 735 (Tex.App.-San Antonio 2000, pet. withdrawn).
In Longaker v. Evans, sitting en banc, we rejected as mere speculation any assumption as to the decedent’s motives or intent when she terminated a trust whose proceeds would have benefitted her son but instead went to the brother “advising” her to terminate the trust. Id. at 734-35 . We noted that during her lifetime the decedent was empowered to dispose of her assets in any way she wished, even in the face of specific bequests in her will. Id. In the absence of competent evidence demonstrating she never intended to divest her son of the trust assets, we held it was improper to make that assumption. Id.
Although the facts are different, the same principle applies to this case. There is simply no evidence demonstrating what Marguerite would have decided to if she had known of her cancer. Any attempt to infer or assume what she would have done is improper. See Longaker, 32 S.W.3d at 735 . Marguerite would not have been legally harmed had she known about her *145 cancer when she proceeded with the surgeries. Since it is unknown whether Marguerite would have proceeded with the surgeries if she had known about the cancer, the appellant has failed to present evidence establishing a causal connection between the acts of Drs. Kelley and Kirk and any harm suffered. Accordingly, the motion for rehearing should be granted, the panel opinion and judgment should be withdrawn and revised, and the trial court’s summary judgment should be affirmed.