## Facts

- Shelton D. Hood was a long-term patient of Dr. John R. Phillips and suffered from emphysema.
- Dr. Phillips testified that accepted emphysema treatment included smoking cessation, climate change, medication to lessen bronchial spasm, breathing machines, and oxygen therapy.
- In 1966, Dr. Phillips removed one of Hood’s carotid bodies in an effort to reduce Hood’s suffering.
- Phillips had used carotid body resection as an experimental treatment since about 1962 and claimed to have performed 1,200 to 1,500 such operations by 1966.
- Phillips conceded the surgery was not generally accepted and was highly controversial.
- Hood’s medical experts described the surgery as unaccepted, unsupported by medical evidence, and abandoned as ineffectual.
- Hood alleged injury from the procedure and claimed negligence in using a non-accepted procedure and in failing to obtain informed consent.

## Issues

1. Whether malpractice liability turns on ordinary negligence (reasonable-physician standard) rather than a “respectable minority” safe-harbor for controversial treatment choices.
2. Whether the trial court erred by refusing to submit informed-consent issues to the jury.
3. Whether the trial court improperly limited discovery and evidence by broadly applying the medical peer-review privilege statute (Article 4447d, § 3).
4. Whether it was error to submit the case solely on gross negligence rather than including ordinary-negligence issues.

## Decision

- The Texas Supreme Court affirmed the court of civil appeals’ judgment reversing the defense verdict and remanding for a new trial, but on other grounds.
- The Court rejected adopting a broad “respectable minority” rule as an independent shield from malpractice liability.
- The Court held the case required proper submission of ordinary-negligence and informed-consent theories supported by the evidence.
- The Court concluded the peer-review privilege protects committee records and proceedings, but does not bar discovery of underlying facts from original sources; the trial court applied the privilege too broadly.

## Legal Principles

- Medical malpractice is governed by an ordinary-negligence standard: whether the physician acted as a reasonably prudent physician would under the same or similar circumstances.
- Support for a treatment by a minority of physicians is admissible evidence on the standard-of-care question, but it is not conclusive and does not establish due care as a matter of law.
- Informed consent is a distinct theory of liability; when supported by evidence, the jury must be asked whether the physician disclosed material information about the procedure, its risks, and available alternatives, including the procedure’s controversial or non-accepted status when material.
- Statutory medical peer-review privilege covers committee records and proceedings, but not underlying factual information obtainable from original sources; courts must avoid overbroad use of the privilege to exclude relevant, non-privileged evidence.

## Conclusion

The Texas Supreme Court ordered a new trial because the case was not properly tried on ordinary negligence and informed consent, and because discovery and proof were unduly restricted by an expansive reading of peer-review privilege; minority professional support for a controversial procedure was only evidence, not a categorical defense.


Hood v. Phillips, 554 S.W.2d 160 (Tex. 1977)