§ 74.101.Theory of Recovery

One sentence that eliminated a body of alternative theories.

Where a health care liability claim is based on failure to disclose or adequately disclose the risks and hazards of medical care or a surgical procedure, the only theory on which recovery may be obtained is that of negligence in failing to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent.

Two things follow. Informed consent claims are negligence claims — not battery, not fraud, not breach of fiduciary duty, whatever the pleading says. And the standard of materiality is objective: risks that could have influenced a reasonable person, not risks this particular patient says would have influenced them.

Framing the claim as battery mattered historically. An operation without consent is a touching without permission, and battery carries no need for expert testimony on a standard of care. The section closes that route.

The objective standard resolves the other recurring difficulty. A patient who suffered a rare complication will testify they would have refused had they known. Measuring materiality by the reasonable person removes the hindsight from the question.

What must be disclosed is determined by the Texas Medical Disclosure Panel under the sections that follow, which is what makes this a largely administrative area of Texas law.