Michael K. Williams and Mary Williams v. Heuser Chiropractic, Dr. Charles H. Heuser, Dr. Nathan Nix, Chiro Health, Inc., and Unknown Staff of Heuser Chiropractic--Appeal from 392nd District Court of Henderson County

NO. 12-02-00019-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

MICHAL K. WILLIAMS AND

 
APPEAL FROM THE 392ND

MARY WILLIAMS,

APPELLANTS

 

V.

 
JUDICIAL DISTRICT COURT OF

HEUSER CHIROPRACTIC,

DR. CHARLES H. HEUSER,

DR. NATHAN NIX, CHIRO HEALTH,

INC., AND UNKNOWN STAFF

OF HEUSER,

APPELLEES

 
HENDERSON COUNTY, TEXASMEMORANDUM OPINION

Appellants Michal K. Williams ("Michal") and Mary Williams ("Mary") (collectively, the "Williamses") appeal the trial court's grant of a directed verdict and entry of a take-nothing judgment in favor of Appellees Heuser Chiropractic, Dr. Charles H. Heuser, Dr. Nathan Nix ("Dr. Nix"), Chiro Health, Inc., and the unknown staff of Heuser Chiropractic. (1) In five issues, the Williamses contend the trial court erred in granting a directed verdict on their DTPA claims and that the jury's finding of no negligence is against the great weight and preponderance of the evidence. We affirm.

 

Background

In the fall of 1997, Michal Williams began to experience stiffness and pain in his lower back and side. At that time, he was not experiencing any neck pain. During that same time period, Michal received a coupon in the mail from Heuser Chiropractic in Tyler that advertised "Free chiropractic treatments and refreshments on 1st visit. All adjustments and therapies no charge. All x-rays $10.00 each if needed."

On November 3, Michal went to Heuser Chiropractic in order to receive treatment. During

his first visit, Dr. Nix examined him and took x-rays of his hip area. After the x-rays were taken, Dr. Nix explained to Michal that he was suffering from degenerative joint disease and showed him on a skeletal model the areas that were painful. Dr. Nix also explained the future ramifications of the disease, stating that Michal was going to develop problems with his bladder, colon, prostate gland, and "sex organ" if he did not receive treatment. During this visit, Michal did not complain to Dr. Nix that he was experiencing any neck pain.

At some point during the visit, one of the staff members of Heuser Chiropractic explained to Michal that in order to treat this condition, he needed thirty visits at $110.00 per visit. If Michal paid for the treatment up front, he would receive a thirty-three percent discount. Dr. Nix then told Michal that after the thirty visits, he would be "as good as new" and "back to normal." At the end of the visit, Michal signed a contract accepting Heuser's offer of services. Michal made twenty-five visits to Dr. Nix. He did not have to pay for the entire thirty visits because the contract he signed stated that he had no obligation to pay for any service that he did not receive.

At around the eighth or ninth visit, Michal received chiropractic manipulations on his neck from Dr. Nix and Dr. Dwayne Kubeka ("Dr. Kubeka"). (2) Prior to those cervical manipulations, Dr. Nix never x-rayed Michal's neck. After a few of the cervical manipulations were performed, Michal complained to Dr. Nix that he was "walking funny" and that his "reflexes were weird." On the twelfth visit, Michal told Dr. Kubeka that he had "weird sensations running through his right leg" and on the fourteenth visit, he told Dr. Kubeka that his legs were "jumping like frogs." During one of the visits, Michal received electrical muscle stimulation and suffered a burn on his back about two to three inches in width. When he received the burn from the electrical stimulation unit, Michal testified that he had told the assistant to "turn it up" because he wanted a strong treatment for his back pain.

On December 20, the twentieth visit, Michal complained to Dr. Nix that he had developed numbness in his left hand. Dr. Nix never took an x-ray of Michal's neck at any time after Michal voiced his complaints about the problems he was having in his legs and hand. Michal then stopped going to Heuser Chiropractic because he "was in pain from [his] neck down to [his] tailbone."

When Michal did not return to Heuser Chiropractic for treatment, he began receiving phone calls from the office staff, telling him that he needed to come back for treatment because his condition was not going to get any better "if [he sat] on the couch." On January 24, 1998, Michal went back to Dr. Nix and received another cervical manipulation. Dr. Nix never took an x-ray of Michal's neck at any time prior to or after this cervical manipulation. Once this visit had concluded, Michal decided he did not want to receive any further treatment from Heuser Chiropractic because he was not getting any better. At trial, however, Michal conceded that he told Dr. Nix that he was "ninety percent better" after this last visit.

On June 4, 1998, Michal went to see Dr. Michael Russell, an orthopedic surgeon, because he was having reflex problems in his hands, falling, stumbling, and losing his balance. Michal thought these problems were caused by the treatment he received at Heuser Chiropractic. Dr. Russell took x-rays and had an MRI performed, as well as other neurological tests. The MRI revealed that Michal was suffering from cervical osteophytes (bone spurs), stenosis (narrowing of the middle of the vertebra that the spinal cord runs through), a cervical disc herniation, and lumbar disc degeneration. In order to alleviate Michal's problems, Dr. Russell performed an anterior cervical discectomy with fusion, meaning that he took the disc out, removed the bone spurs from the spinal cord, and then fused that level with bone taken from Michal's hip.

On November 5, 1998, the Williamses sued Heuser Chiropractic, Dr. Heuser, Dr. Nix, Chiro Health Inc., Dr. Kubeka, Linda Kenshalo, and the unknown staff of Heuser Chiropractic, alleging causes of action for negligence, informed consent, assault and battery, violations of the Deceptive Trade Practices Act ("DTPA"), breach of the warranty of cure, and civil penalties under section 36.25 of the Texas Business and Commerce Code for failing to file an assumed business name with the Texas Secretary of State. (3) On April 9, 2001, the Williamses amended their original petition, adding causes of action for an "unconscionable course of action" under the DTPA and illegal pricing practices, as well as allegations that Chiro Health Inc. was the "corporate veil" of Dr. Heuser. Specifically, the Williamses alleged that as a result of chiropractic manipulation, one or more of the appellees caused a disc in Michal's neck to rupture, necessitating surgical intervention.

On April 17, 2001, the Williamses' case went to trial, and Appellees moved for a directed verdict on the Williamses DTPA, negligence, and informed consent causes of action. Appellees based their motion on the fact that there was no evidence or, alternatively, insufficient evidence relating to the proximate cause of the Williamses' damages. Appellees also argued that 1) the DTPA causes of action were precluded by section 17.49(c) of the DTPA, and 2) no evidence existed to support the allegation that any violation of the DTPA by Appellees was a producing cause of the Williamses' damage.

After hearing argument from both sides, the trial court granted Appellees' motion for a directed verdict. Once the case concluded, the pertinent three questions posed to the jury were:

 

1. Did the negligence, if any, of Dr. Nathan Nix proximately cause injury to Michal Williams?

2. Did Dr. Nathan Nix fail to obtain informed consent from Michal Williams for cervical manipulation?

"Informed consent" means consent given by a patient to whom such risks incident to cervical manipulation have been disclosed as would be disclosed to the patient by a chiropractor of ordinary prudence under the same or similar circumstances.

3. If those risks had been so disclosed, would a person of ordinary prudence have refused such treatment under the same or similar circumstances?

 

The jury answered "no" to the negligence question and "yes" to the informed consent question, but answered negatively to the third question, inquiring whether a person of ordinary prudence would have refused such treatment. The jury did not answer the other four questions, which were conditionally submitted upon affirmative answers to the first and third questions.

On May 18, the Williamses filed an amended motion for new trial, which the trial court denied on November 21. On December 26, the Williamses timely filed a notice of appeal. On appeal, the Williamses contend that the trial court erred in granting Appellees' motion for a directed verdict on their DTPA causes of action and that the jury's verdict on negligence and informed consent is against the great weight and preponderance of the evidence.

 

Review of the Directed Verdict on the Williamses DTPA Claims (4)

Standard of Review

A court may instruct a verdict if no evidence of probative force raises a fact issue on the material questions in the suit. Prudential Ins. Co. of Am. v. Financial Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). A directed verdict for a defendant may be proper in two situations. First, a court may direct a verdict when a plaintiff fails to present evidence raising a fact issue essential to the plaintiff's right of recovery. Id. Second, a trial court may direct a verdict for the defendant if the plaintiff admits or the evidence conclusively establishes a defense to the plaintiff's cause of action. Id. In reviewing a directed verdict, we examine the evidence in the light most favorable to the person suffering the adverse judgment. Smith v. Universal Elec. Const. Co., 30 S.W.3d 435, 438 (Tex. App.-Tyler 2000, no pet.). We therefore review the record to determine if any evidence exists to support the Williamses' DTPA causes of action.

The Testimony

Dr. John Martin, a chiropractor in Austin, testified for the Williamses. Dr. Martin has been practicing as a chiropractor for thirty-seven years, and is a co-author of the "Texas Guidelines for Chiropractic Quality Assurance." Dr. Martin testified that the proper standard of care for performing a cervical manipulation is to do some type of examination and testing before the cervical manipulation takes place. Specifically, the proper examination would include testing the patient's range of motion, a Valsalva's maneuver (the patient tightens his neck muscles to determine if there is "nerve root involvement in the neck"), a Soto Hall test (to determine whether a herniated disc is present), reflex tests, and grip tests (to determine whether a nerve is pinched). Dr. Martin testified that after reviewing Michal's records, he did not see anywhere that Dr. Nix performed any of these tests before Michal's cervical spine was manipulated. Dr. Martin further stated that he believes the failure to perform these tests falls below the standard of care.

With regard to informed consent, Dr. Martin testified that informed consent means that a chiropractor has to "tell the patient the possible consequences of [the] care" and to "inform the patient fully as to what's going to happen or might happen" if the care is continued. Dr. Martin stated that Dr. Nix's records of Michal's treatment do not include any mention of Michal receiving the necessary information prior to the cervical manipulation and that this failure to give Michal the information falls below the standard of care. Taking into account Michal's bone spurs at the C5-C6 level, Dr. Martin believes that the cervical manipulation performed by Dr. Nix caused Michal harm. Specifically, Dr. Martin testified that when Michal presented with complaints of numbness in his left hand, it was reasonably probable that the numbness was related to the manipulation at the C5-C6 level. Dr. Martin also stated that when a patient receives electrical muscle stimulation, the stimulation should not be so intense as to burn a patient.

Dr. Martin further testified that Michal's pre-existing cervical spurring at the C5-C6 level, along with a bulging disc at the same level, could have been aggravated by the cervical manipulation. When asked whether thirty was an excessive number of visits, Dr. Martin stated that there is "no documented literature on how long you treat anything." Dr. Martin also testified that if a person with Michal's conditions (a ruptured C5-C6 cervical disc and bone spur pressing on the spinal cord) presented to a reasonably prudent chiropractor, the chiropractor should refer the patient to a specialist immediately.

Dr. Nix testified first as an adverse witness in the Williamses' case-in-chief. When asked if Michal's cervical bone spurs would have shown up on an x-ray had he referred Michal for x-rays, Dr. Nix replied, "Very possibly." Dr. Nix agreed that he did not perform a cervical examination on Michal on November 10 or 17 of 1997. He also agreed that he never took an x-ray of Michal's neck. Dr. Nix stated that he never advised Michal of the consequences associated with manipulations of his neck. When asked whether it is standard practice for him and Heuser Chiropractic to manipulate persons who have cervical spurs that are effacing the spinal cord, Dr. Nix stated, "No, sir, it is not." Other than the range of motion test, Dr. Nix testified that he never performed any neurologic test to determine whether Michal suffered from a degenerative neck condition. Dr. Nix also agreed that the spurring condition in Michal's neck was far from "essentially normal," as Dr. Nix had described Michal's neck in the December 1, 1997 notes.

Dr. Nix testified that had he known about the MRI results which showed that Michal had bone spurs effacing his spinal cord, he would not have performed the cervical manipulations. Dr. Nix also stated that he never told Michal about any of the worse-case consequences that could result from spinal manipulation, nor did he tell him that a bone spur in his neck effacing his spinal cord could be aggravated during spinal manipulation. Dr. Nix agreed that a patient would be frightened about loss of sexual function, prostate problems, or kidney problems. He also agreed that paralysis and death could possibly result from cervical manipulation. Dr. Nix testified that his conduct with regard to Michal's neck was appropriate, even though he did not take any x-rays, and that he would perform the same treatment again.

Next, Dr. Kubeka testified by deposition, and stated that he would not perform a cervical manipulation on a person who presented with symptoms that could indicate a ruptured extruded cervical disc. He also testified that when Michal presented with numbness in his hands, he would not have continued, as Dr. Nix did, with more cervical manipulations. As a reasonably prudent chiropractor, Dr. Kubeka stated that he does not approve of taking in a new patient and making a determination on that first visit that the patient needs twenty-five treatments. Dr. Kubeka also stated that there would be no way for Dr. Nix or Heuser Chiropractic to know after the first visit that Michal needed to sign up for twenty-five treatments. He agreed that the burn Michal suffered on his back during treatment was not acceptable chiropractic practice.

Dr. Russell testified by deposition and stated that when Michal presented on June 4, 1998, he was complaining of lower back pain, spasms in his leg, and a jumping sensation in both hands. After Dr. Russell ordered an MRI, he found Michal was suffering from osteophytes, spinal stenosis, a disc herniation in the cervical spine, as well as lumbar degeneration and osteophytes. He also found that Michal had bone spurs that were impinging on his cervical cord. Dr. Russell determined that Michal needed an anterior cervical discectomy, meaning taking the disc out, removing the bone spurs from the spinal cord, decompressing the spinal cord, allowing it to go back to a more normal shape, and then fusing that level. When asked what type of medical complications could result from a hyperextension of the neck, Dr. Russell explained that it could cause spinal cord damage, which results in incoordination of the hands and/or legs, weakness of the hand and/or legs, difficulty with fine motor skills of the hands and upper extremities, and difficulty walking. Dr. Russell also stated that Michal presented to him with some of those symptoms.

Dr. Russell further testified that the cervical manipulation could have, in reasonable medical probability, caused Michal to have symptoms or aggravations that would require surgical intervention. In Dr. Russell's opinion, such an event is what happened in Michal's case. Dr. Russell testified that it was possible that the numbness Michal was suffering in his hands was due to the cervical manipulations he received from Dr. Nix. Dr. Russell based his opinion that the cervical manipulations caused Michal harm on the fact that Michal had no complaints about arm or hand symptoms prior to the manipulation.

On redirect examination, Dr. Russell stated that the cervical manipulations would more likely than not have caused the existing spurring to be pushed against the spinal cord. When asked if he would refer a patient such as Michal, suffering from cervical spurring and stenosis, to a chiropractor for cervical manipulations, Dr. Russell replied, "Absolutely not. . . . Because of the possibility of damage to the spine." Dr. Russell also testified that he could not rule out the possibility that the chiropractic treatment was the cause of Michal's symptoms that necessitated surgery. Based on Michal's medical history, and assuming that Michal could not point to any other activity that caused his neurologic deficits, Dr. Russell testified that in reasonable medical probability, the chiropractic treatment was the cause of the neurologic deficits that required surgery to repair.

Dr. Braden McKechnie testified next on behalf of Heuser Chiropractic and Dr. Nix. Dr. McKechnie has been a licensed chiropractor since 1986, and is a former professor at Texas Chiropractic College. On cross-examination, Dr. McKechnie agreed that Dr. Nix never diagnosed the spurring at the C5-C6 level and that he manipulated the area on many occasions without the benefit of that diagnosis. Dr. McKechnie also agreed that Dr. Nix failed to advise Michal that the condition existed or that he had a ruptured disc at the same level. Dr. McKechnie testified that Dr. Nix never performed any test to determine whether there was myelopathy at the C5-C6 level. When asked if he would have conducted a neurologic examination, Dr. McKechnie said that he would more than likely have ordered an x-ray of Michal's neck.

With regard to informed consent, Dr. McKechnie agreed that adverse consequences relative to a chiropractic manipulation could occur in some forms of inappropriately-applied manipulation. Analysis

In their first amended original petition, the Williamses alleged that Appellees violated the DTPA and "breached the warranty of cure" by engaging in the following conduct:

 

A. Representing that the Defendants' services had sponsorship, approval, characteristics, ingredients, uses, benefits and quantities which they did not have.

B. Representing that the Defendants' services were of [a] particular standard, quality, and grade while actually they were of another.

 

C. Representing that the Defendants' guarantee and warranty of their services and of a cure of his condition had rights and remedies which it did not have.

D. For failure to disclose information to Plaintiff about Defendants' services which had he known at the time of the treatment, Plaintiff would not have agreed to the treatment and at such time Defendants failed to disclose such information to Plaintiff to induce him to enter into the treatment program.

E. Plaintiffs will also show that Defendants, in signing Plaintiff up to a 30-visit course of treatment was excessive as to the number of visits and the need for treatment by the chiropractor and exceeded any reasonable expectation for treating Plaintiff and became merely a scare tactic and a motive to extract money from the Plaintiffs. The unconscionable course of action is also exemplified by Defendants' efforts to get the Plaintiff to pay for 30 visits in cash by offering a cash discount and by luring Plaintiffs to the establishment through Val-Pak flyers in the mail received at Plaintiffs' house in Brownsboro, Henderson County, Texas, offering "free initial visits and examinations." The "free initial examination" was merely an opportunity to convince Plaintiff to sign on for an unconscionable course of treatment consisting of 30 visits to the office of Defendants.

 

The Williamses also alleged that this course of conduct was a producing cause of their damages and that Appellees acted knowingly.

Applicable Law

The DTPA prohibits "[f]alse, misleading, or deceptive acts or practices in the conduct of any trade or commerce." Tex. Bus. & Com. Code Ann. 17.46(a) (Vernon 2003). Section 17.46(b) is a laundry list of specifically prohibited acts. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 501 (Tex. 2001). Section 17.46(b)(5) and 17.46(b)(7) prohibit "false, misleading, or deceptive acts or practices including . . . representing that goods and services have characteristics, ingredients, uses, [or] benefits . . . which they do not have" and "representing that goods or services are of a particular standard, quality or grade . . . if they are of another." Tex. Bus. & Com. Code Ann. 17.46(b)(5), (7) (Vernon 2003). Section 17.46(b)(20) declares unlawful any representations that a "guarantee or warranty confers or involves rights or remedies which it does not have or involve. . . ." Tex. Bus. & Com. Code Ann. 17.46(b)(20) (Vernon 2003). Former section 17.46(b)(23) prohibited

 

the failure to disclose information concerning goods or services which was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed.

 

Tex. Bus. & Com. Code Ann. 17.46(b)(23) (Vernon 2000) (renumbered as 17.46(b)(24) by Act of June 14, 2001, 77th Leg., R.S., ch. 962, 1, 2001 Tex. Sess. Law Serv. 962 (Vernon) (codified as an amendment to Tex. Bus. & Com. Code Ann. 17.46(b)). Section 17.50 provides the remedy for violations of the laundry list provisions of section 17.46(b) and for "any unconscionable action or course of action by any person." Tex. Bus. & Com. Code Ann. 17.50(a)(1), (3) (Vernon 2003). Actionable representations may be oral or written. Wilkins, 47 S.W.3d at 502. A party need not prove intent to make a misrepresentation under sections 17.46(b)(5) or 17.46(b)(7); making the false representation itself is actionable. Id.

In order to recover in a DTPA case, a plaintiff must prove that 1) the plaintiff is a consumer, 2) the defendant has engaged in false, misleading, or deceptive acts, and 3) the acts were a producing cause of the plaintiff's injuries. Doe v. Boys Clubs of Greater Dallas, 907 S.W.2d 472, 478 (Tex. 1995). A "producing cause" showing requires some evidence that the defendant's act or omission was a cause in fact of the plaintiff's injury and is a substantial factor which brings about the injury and without which the injury would not have occurred. Id.

With regard to actionable representations, the Texas Supreme Court has recognized that "mere puffing" or opinion statements are not actionable under sections 17.46(b)(5) or 17.46(b)(7). Wilkins, 47 S.W.3d at 502. An imprecise or vague representation constitutes a mere opinion. Autohaus v. Aguilar, 794 S.W.2d 459, 462 (Tex. App.-Dallas 1990), writ denied per curiam, 800 S.W.2d 853 (Tex. 1991).

Misrepresentations and Breach of Warranty

Specifically, the Williamses contend that the misrepresentations and warranty that they relied on were the promises by Heuser that after thirty visits, Michal would be "as good as new" and would be "back to normal." The Williamses argue that these promises assume that Heuser would correct any problems in his lower back, not create new problems, such as the aggravation of the bone spurs and degenerative disc condition and the burn Michal suffered on his back. Heuser, on the other hand, maintains that such phrases are colloquial expressions and in order to be actionable, must be more specific. We agree.

The statements made by Dr. Nix that Michal would be "as good as new" and "back to normal" are imprecise and vague representations and were therefore Dr. Nix's opinions and puffing on what the outcome of Michal's course of treatment would be. See Sorokolit v. Rhodes, 889 S.W.2d 239, 242-43 (Tex. 1994) (surgeon could be held liable under the DTPA for promising that a patient's breast enhancement would look like a picture she selected). In the instant case, Dr. Nix made no representations or warranties regarding the exact result of his treatment of Michal. Accordingly, the trial court did not err in granting Heuser's motion for a directed verdict with regard to the Williamses' misrepresentation and breach of warranty claims under sections 17.46(b)(5), 17.46(b)(7), and 17.46(b)(20).

Failure to Disclose Information

Former section 17.46(b)(23) required a plaintiff claiming non-disclosure under the DTPA to prove four elements: 1) a failure to disclose information concerning goods or services, 2) which was known at the time of the transaction, 3) if such failure was intended to induce the consumer into a transaction, 4) into which the consumer would not have entered had the information been disclosed. Chandler v. Gene Messer Ford, Inc., 81 S.W.3d 493, 502 (Tex. App.-Eastland 2002, pet. denied). Nondisclosure without evidence that a defendant had knowledge of the undisclosed information and intentionally withheld the information is not actionable. Id. There is also no duty to disclose if a defendant fails to disclose material facts it should have known. Doe, 907 S.W.2d at 479.

In the instant case, there is no evidence in the record to show that Dr. Nix knew of any condition that Michal had before he began treatment. Even if Dr. Nix should have known about Michal's pre-existing conditions and failed to diagnose them, Dr. Nix was under no duty to disclose those facts under the DTPA because he did not have knowledge of them at the time he treated Michal. See id. Accordingly, the trial court did not err in granting Heuser's motion for directed verdict on the Williamses' failure to disclose claim under the DTPA.

Unconscionable Action or Course of Action

An "unconscionable action or course of action" means an act or practice which, to a consumer's detriment, takes advantage of the lack of knowledge, ability, experience, or capacity of the consumer to a grossly unfair degree. Tex. Bus. & Com. Code Ann. 17.45(5) (Vernon 2003). "Grossly" means glaringly noticeable, flagrant, complete, and unmitigated. State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 451 (Tex. 1997). There must be a showing of what the consumer could have or would have done if he had known about the information. Peltier Enters., Inc. v. Hilton, 51 S.W.3d 616, 623 (Tex. App.-Tyler 2000, pet. denied).

The Williamses argue that the conduct of Heuser which constituted an unconscionable course of action was

 

actively advertis[ing] for customers, luring them in with offers of free services. Once they had the potential customer in the door they used x-rays, talk of nerve connections to vital organs, threats of dire consequences if they do not provide treatment, promises of complete cure and return to "normalcy" if the potential customer signs up for thirty visits, and at a discount too if they paid up front.

. . . .

 

Prior to Mr. Williams submitting to Heuser, he had no unusual problems or symptoms relating to his cervical spine. In the course of the treatment with Heuser, following cervical manipulations by Nix, he developed symptoms pointing directly to his cervical spine. Although his bone spurs and other physiological conditions may have predated his going to Heuser, they were asymptomatic until Heuser got a hold of him.

 

. . . .

 

For Heuser to scare Mr. Williams into this extended and expensive course of treatment, all the while telling him everything was normal, to expand the manipulations beyond the part of the spine for which treatment had been determined to be necessary through the use of appropriate diagnostic testing, and to accelerate and cause to become symptomatic a previously dormant condition, far exceeds the evidence needed to show that Heuser took advantage of the lack of knowledge, ability, experience, or capacity of Mr. Williams to a grossly unfair degree.

 

We disagree. The record is devoid of any evidence which indicates that Heuser's course of conduct was grossly unfair to Michal. The agreement Michal entered into with Heuser states that he was not responsible for paying for any service that he did not receive. Furthermore, Dr. Martin, Michal's expert, stated that he was not critical of Dr. Nix's estimation that Michal could have reached maximum medical improvement in thirty visits. Therefore, the trial court did not err in granting Heuser's motion for directed verdict on the Williamses' unconscionable course of conduct claim under the DTPA.

Knowing Violation of DTPA

The Williamses contend that Dr. Nix committed a knowing violation of the DTPA because he "knew what steps should have been taken when Mr. Williams reported stiffness in a new and previously unexamined part of his spine."

Section 17.50(b)(1) of the DTPA allows trebling of all actual damages if the trier of fact finds that the defendant violated the DTPA "knowingly." Tex. Bus. & Com. Code Ann. 17.50(b)(1) (Vernon 2003). Because we have not found any evidence of Heuser's violation of the DTPA, we need not address whether Heuser acted knowingly. Therefore, the trial court did not err in granting Heuser's motion for a directed verdict on all of the Williamses' DTPA claims. The Williamses' first three issues are overruled.

 

Factual Sufficiency of the Evidence

In their two final issues, the Williamses contend that the jury's findings of "no" on the negligence and the second informed consent question are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.

Standard of Review

When conducting a factual sufficiency review, this court must consider all of the evidence, including any evidence contrary to the verdict. Plas-Tex. Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). We must reverse on the basis of factual insufficiency if the court's finding is so against the great weight and preponderance as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). Findings of fact are the exclusive province of the factfinder. Bellefonte Underwriters Ins. Co. v. Brown, 704 S.W.2d 742, 744 (Tex. 1986). This court is not a factfinder and may not pass on the credibility of the witnesses or substitute its judgment for that of the trier of fact, even if a different conclusion could be reached on the evidence. See Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988); Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex. App.- Dallas 1986, writ ref'd n.r.e.). When a party without the burden of proof on an issue challenges the factual sufficiency of the evidence, the question is whether the evidence in support of the complained-of finding is insufficient. Gooch v. American Sling Co., 902 S.W.2d 181, 184 (Tex. App.-Fort Worth 1995, no writ). An assertion that the evidence is "insufficient" to support a fact finding means that the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the finding should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). When a party challenges the factual sufficiency of the evidence on an issue where that party has the burden of proof, the question is whether the factfinder's failure to make a finding is against the great weight and preponderance of the evidence. Gooch, 902 S.W.2d at 184.

Negligence

The elements of a negligence cause of action are 1) a legal duty, 2) a breach of that duty, and 3) damages proximately resulting from the breach. Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998). The components of proximate cause are cause-in-fact and foreseeability, and these elements cannot be established by mere conjecture, guess, or speculation. Doe, 907 S.W.2d at 477. The test for cause-in-fact is whether the negligent act or omission was a substantial factor in bringing about the injury, without which the harm would not have occurred. Id. Cause-in-fact is not shown if the defendant's negligence did no more than furnish a condition which made the injury possible. Id. The element of foreseeability is whether the injury might have been contemplated as a result of the defendant's conduct. Id. at 478.

On cross-examination, Dr. Martin testified that in his opinion, the conditions found by Dr. Russell that related to Michal's neck pre-existed the time that Michal was treated by Heuser Chiropractic. Dr. Martin stated that he thinks those conditions were aggravated by Dr. Nix's treatment. Although Dr. Martin did not examine Michal, he concluded the symptoms of spinal cord effacement were not present when Michal began treatment but were present when he stopped treatment. Dr. Martin also thought that Dr. Nix did an excellent job of treating Michal's lower back. Dr. Martin agreed that when Michal presented to Dr. Nix on January 24, 1998, the range of motion test performed on Michal's cervical spine showed that he was normal.

On cross-examination, Dr. Russell agreed that Michal did not state on his initial visit form that he had an onset of acute symptoms during the period of time he was being treated by a chiropractor. Dr. Russell could not state with certainty that each of Michal's conditions were present prior to January of 1998 or from November of 1997 to January of 1998. Dr. Russell did state, however, that the stenosis caused by the osteophytes and the contact between the osteophytes and the spinal cord had been in existence prior to the time Michal sought chiropractic care in November 1997. Dr. Russell also stated that the degenerative disc condition in Michal's neck had been in existence prior to the time that he sought chiropractic care.

Dr. Russell further testified that once bone spurs start touching the spinal cord, some symptoms will begin to show and that there is no way of predicting when the symptoms will begin. Dr. Russell also stated that in Michal's line of work, the irrigation business, where he bends and stoops and moves his head, such movements could cause a condition such as Michal's to become symptomatic. He also said that the ruptured disc in Michal's neck could have been in existence prior to the time Michal sought chiropractic care. Dr. Russell did not know whether the disc herniation that was observed on the MRI occurred before Michal began chiropractic treatment or after. He also stated that he did not observe any evidence in the MRI or his physical examination to support a conclusion that any of the conditions he observed in Michal were caused by Dr. Nix or the chiropractic treatment. Dr. Russell further testified that in his examination of Michal, he did not find any evidence that the chiropractic manipulations aggravated the condition that pre-existed the chiropractic treatments or any evidence that Michal was harmed or damaged by anything Dr. Nix did or failed to do.

Dr. Nix testified at the beginning of Appellees' case-in-chief. He testified that he is currently operating his own chiropractic practice, but prior to that, he was an employee of Heuser Chiropractic. Dr. Nix stated that he did not pressure Michal into receiving treatment at Heuser Chiropractic. Dr. Nix also testified that at no time did he guarantee Michal that he would cure his condition, only that he "would try to get him as corrected as much as possible with our treatment." Dr. Nix further stated that Michal never complained that he was in pain when Dr. Nix performed any of the cervical manipulations, either during or after.

In Dr. McKechnie's opinion, Michal had a very advanced case of degenerative joint disease in his neck, a sizeable bone spur, and spinal cord decompression of long-standing duration. He also stated that he thought these conditions existed before Michal's treatment at Heuser Chiropractic. When asked what would happen to a patient who had a bone spur that was pushed into the spinal cord, Dr. McKechnie stated that he would experience "Lhermitte's sign," which is "like an electric shock that is passed through the spinal cord that would run into both legs, probably down both arms, and possibly up into the face." Dr. McKechnie testified that he could not find any evidence from Michal's records that he exhibited Lhermitte's sign. Based on his interpretation of Michal's MRI, the degeneration in his spinal cord is consistent with a long-standing, degenerative problem and not an impact-type trauma. Because Michal did not exhibit a Lhermitte's sign or any other type of sign to indicate trauma, Dr. McKechnie believes that the chiropractic treatments administered by Dr. Nix did not cause or aggravate Michal's condition.

Dr. McKechnie also stated that he does not think that Michal received an inappropriately-applied spinal manipulation. He also testified that the spinal manipulations were appropriate under the circumstances based upon the information that was available to him and the history and clinical picture given to him by the patient. After reviewing Michal's medical records and notes, Dr. McKechnie does not think that Dr. Nix's manipulations of Michal's cervical area fall below the standard of care.

Based on our review of the evidence, both contrary to and in support of the verdict, we hold that the jury's finding on the negligence issue is not against the great weight and preponderance of the evidence. The Williamses' fourth issue is overruled.

Informed Consent

In their final issue, the Williamses argue that the jury's "no" answer to the question of "if those risks [incident to cervical manipulation] had been so disclosed, would a person of ordinary prudence have refused such treatment under the same or similar circumstances" is against the great weight and preponderance of the evidence. (5)

The theory of informed consent is based on negligence, and a plaintiff may not recover unless he proves both that he would not have consented to treatment had he been informed of the undisclosed risk and that he was injured by the occurrence of the risk of which he was not informed. Hartfiel v. Owen, 618 S.W.2d 902, 905 (Tex. App.-El Paso 1981, writ ref'd n.r.e.).

The Williamses do not direct us to, nor can we find, any evidence in the record to show that Michal or any other reasonably prudent person would not have consented to treatment had he been informed of any undisclosed risks or that Michal was injured by the occurrence of any risks of which he was not informed. Accordingly, we conclude that the jury's answer to question three is not against the great weight and preponderance of the evidence. The Williamses' final issue is overruled.

 

Conclusion

The Williamses failed to produce a scintilla of evidence to support their DTPA claims; therefore, the trial court did not err in granting Heuser's motion for directed verdict. Likewise, the jury's findings with regard to negligence and whether a reasonably prudent person would have consented to treatment had any risks been disclosed are not against the great weight and preponderance of the evidence. Therefore, the trial court's judgment is affirmed.

 

DIANE DEVASTO

Justice

 

Opinion delivered January 21, 2004.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

 
(PUBLISH)

1. For the sake of simplicity, all appellees will be collectively referred to as "Heuser;" each appellee will be referred to by name.

2. In describing the cervical manipulations, Michal stated that Dr. Nix would "grab my head somehow and twist it both ways . . . he popped it. He moved it, you know, to the right and to the left and it sounded like fireworks. A lot of stuff was popping." Dr. Nix stated that "I would be standing at the head of the table, patient lying on his back combined with a mild extension, mild rotation towards the right. Rotation to the right, mild extension with a backward to front assistance to the muscle."

3. Dr. Kubeka and Linda Kenshalo were nonsuited at some point after the Williamses filed their original petition.

4. We note that because chiropractors were not mentioned in the definition of "health care provider" at the time the Williamses' DTPA causes of action accrued, such claims are not barred by the Medical Liability Insurance Improvement Act. See Ponce v. El Paso Healthcare Sys., Ltd., 55 S.W.3d 34, 37 (Tex. App.-El Paso 2001, pet. denied).

5. This question was conditioned upon the jury's affirmative answer to the question, "Did Dr. Nathan Nix fail to obtain informed consent from Michal Williams for cervical manipulation?"