§ 74.106.Effect of Disclosure

Title 4. Liability in Tort · Chapter 74. Medical Liability · Subchapter C. Informed Consent · Last amended 2003 · Last verified August 29, 2026

In one sentenceSection 74.106 makes proper disclosure and no-disclosure listing create a rebuttable presumption of compliance, makes failure to disclose a listed risk create a rebuttable presumption of negligence, and puts both presumptions in the jury charge.

Full Text of § 74.106

Text sizeJump to: (a) (b)

(a)In a suit against a physician or health care provider involving a health care liability claim that is based on the negligent failure of the physician or health care provider to disclose or adequately disclose the risks and hazards involved in the medical care or surgical procedure rendered by the physician or health care provider:

(1)both disclosure made as provided in Section 74.104 and failure to disclose based on inclusion of any medical care or surgical procedure on the panel's list for which disclosure is not required shall be admissible in evidence and shall create a rebuttable presumption that the requirements of Sections 74.104 and 74.105 have been complied with and this presumption shall be included in the charge to the jury; and

(2)failure to disclose the risks and hazards involved in any medical care or surgical procedure required to be disclosed under Sections 74.104 and 74.105 shall be admissible in evidence and shall create a rebuttable presumption of a negligent failure to conform to the duty of disclosure set forth in Sections 74.104 and 74.105, and this presumption shall be included in the charge to the jury; but failure to disclose may be found not to be negligent if there was an emergency or if for some other reason it was not medically feasible to make a disclosure of the kind that would otherwise have been negligence.

(b)If medical care or surgical procedure is rendered with respect to which the disclosure panel has made no determination either way regarding a duty of disclosure, the physician or health care provider is under the duty otherwise imposed by law.

End

Plain-English Summary

The evidentiary engine of the informed consent scheme, and it runs in both directions.

In the claimant's favour: failure to disclose risks required to be disclosed is admissible in evidence and creates a rebuttable presumption of a negligent failure to conform to the duty of disclosure.

In the physician's favour: both disclosure made as provided and failure to disclose based on inclusion on the panel's no-disclosure list are admissible and create a rebuttable presumption that the requirements have been complied with.

Both presumptions "shall be included in the charge to the jury." The jury is told about them, which is what makes them decisive in practice rather than merely allocating a burden on paper.

The claimant-side presumption has an exception built in: failure to disclose may be found not to be negligent if there was an emergency or if for some other reason it was not medically feasible to make the disclosure.

Subsection (b) covers the gap. Where the panel has made no determination either way about a procedure, the physician or provider is under the duty otherwise imposed by law — the common law standard, with no presumption either way.

So the scheme has three states: on the disclosure list, on the no-disclosure list, and on neither. Only the third is decided by ordinary litigation.

Frequently Asked Questions

What happens if a listed risk was not disclosed?

The failure is admissible and creates a rebuttable presumption of negligent failure to conform to the duty of disclosure, and the presumption is included in the jury charge.

What if the doctor used the proper consent form?

That creates a rebuttable presumption that the disclosure requirements were complied with, also included in the jury charge.

Is failure to disclose ever excused?

Yes. It may be found not negligent if there was an emergency or if for some other reason disclosure was not medically feasible.

What if the panel has not addressed the procedure?

The physician is under the duty otherwise imposed by law, with no presumption either way.

Amendment History

Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1, 2003.

Source & verification. Section text is reproduced verbatim from Texas Legislature Online (statutes.capitol.texas.gov). Enacted by the Texas Legislature. Current through May 14, 2026. Last verified August 29, 2026. · Official source