Texas Oncologist Faces 'Medical Battery' Claim Over Patient Death

Roxanne Nelson, BSN, RN

October 30, 2018

A court has ruled that a lawsuit can move forward against a Texas oncologist who allegedly contributed to a patient's death by administering chemotherapy without her consent.

There is also a plausible claim for medical battery, since the patient was allegedly denied the right to decide on her treatment.

Oncologist Mohsen Shahpouri Arani, MD, initially attempted to have the claim against him dismissed, but that motion was denied by the trial court. He then appealed that decision, challenging the denial of his motion to dismiss under the Texas Medical Liability Act on the basis that an expert report obtained by the patient's family was flawed.

An appellate court has now decided that the preliminary expert report properly addressed a medical battery claim against Arani and that the case may proceed to trial.

Although not all of the details are publicly available, the court report states that in June 2014, Maggie Jackson went to the emergency department at Tomball Regional Medical Center complaining of shortness of breath. She was admitted to the hospital by Arani, who wanted to obtain her white blood cell count. He allegedly instructed the hospital staff to perform a bone marrow biopsy and to administer "a highly toxic drug" (hydroxyurea [Hydrea, Bristol-Myers Squibb]) that is used to treat leukemia. It is also alleged that Arani instructed his staff to administer the drug multiple times without obtaining either Jackson's consent or her informed consent.

The plaintiffs also allege that after Arani and the hospital discovered their mistake, they "attempted to pressure and coerce Ms Jackson into giving her consent, retroactively." Arani and his staff repeatedly tried to "trick and deceive" the patient into consenting to treatment that had already begun, say the plaintiffs.

Jackson died 6 days after being admitted to the hospital, and the heirs and personal representatives of her estate sued both the hospital and Arani for negligence.

Expert Report Opines Negligence

Texas law holds that when a medical malpractice lawsuit is filed, a detailed medical expert report must be served to everyone named as a defendant. This report is due within 120 days after each defendant answers.

Once the expert report is produced, the defendant has 21 days to file objections to it.

In a blog post about this case, Robert Painter, a Houston, Texas–based medical malpractice lawyer, noted that in his experience, "many defendants and their attorneys and insurance companies waste time and resources on challenging expert reports that clearly meet the legal standard."

In this case, the expert report for the plaintiffs was prepared by Harris V. K. Naina, MD, a practicing clinician and oncologist based in Dallas, Texas. In his report, he wrote that Arani had breached the standard of care, which required him to obtain an informed consent from the patient before administering hydroxyurea. Naina further stated that not only did Arani order the drug without consent, the nursing staff also failed to confirm that informed consent had been given, and thus, the hydroxyurea was administered. "Within reasonable medical probability," this first administration of hydroxyurea destroyed Jackson's white blood cells, leading to tumor lysis syndrome, heart block, and kidney failure, which ultimately caused her death, according to the expert report.

Naina further opined that had Arani "properly attempted to obtain Ms Jackson's informed consent to administer Hydrea while she was an in-patient at Tomball Hospital, it is my opinion, based on my review of the records, that Ms Jackson would have refused to consent to the oral chemotherapy treatment of Hydrea, as ordered by Arani and administered by the nursing staff of Tomball Hospital, and would have been discharged home, and, in reasonable medical probability, Ms Jackson would not have died on July 2, 2014."

It is unclear whether the patient was even aware that she had cancer. The appeals court noted that "medical notes indicated that neither Jackson nor her family were informed that Jackson was diagnosed with and being treated for leukemia before Hydrea was administered, and Jackson previously indicated that she did not consent to any chemotherapeutic agents if she was diagnosed with cancer."

Informed Consent

Texas law recognizes the right of patients to decide whether or not to receive treatment that is recommended by a healthcare provider. Painter notes that informed consent "is such an important concept that the law requires physicians themselves to do it — in other words they can't delegate this task to nursing staff."

In an informed conversation with the patient, the risks and benefits of the proposed treatment must be discussed, as well as alternative treatments or a decision to forgo any treatment.

Arani disputed the issue of consent and stated that it is "undisputed that Mrs Jackson signed a general consent form." But the court record indicates that Arani provided "no record citation for this assertion, and we see no indication in the expert's report that Jackson signed a general consent form."

The only consent form that was mentioned in Naina's report was in reference to a bone marrow biopsy, which Jackson signed.

"In my experience, when there is an informed consent complaint, the doctor or hospital typically has a consent form signed by the patient," writes Painter. Most people have experienced the "rushed flurry of activity at a hospital, when the nurse hands a stack of papers to a patient without explaining anything," and that this is the "classic situation where a plaintiff may allege negligence in obtaining informed consent.

"What's interesting about the Court of Appeals opinion in this case is that it distinguishes an informed consent claim from one where no consent was given at all," Painter writes. "In fact, the court describes these claims as 'materially different.'

"A medical malpractice claim based on an allegation that the medical care or surgery was performed without consent can be pursued under theories of medical battery or negligence," he explains.

In this case, the appeals court rejected Arani's arguments about informed consent arguments and instead noted that the plaintiff also alleged medical battery claims.

Although this is big victory for the plaintiff, the case is not over, Painter emphasized. The case will now return to the trial court, where it will be heard in front of a jury.

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