Neeble v. Sepulveda , 989 S.W.2d 390 ( 1999 )

OPINION ON REHEARING

PER CURIAM.

Neeble filed a motion for rehearing, which we deny. We write only to respond to the dissenting opinion on Neeble’s motion for rehearing en banc.

The dissent argues we held that unnecessary surgery is not harmful. We have not. A complaint that a physician performed unnecessary surgery can form the basis for a cause of action based on either negligence (misdiagnosis or mistreatment) or battery. Misdiagnosis or mistreatment are negligence issues, not informed consent issues. Patton v. Saint Joseph’s Hosp., 887 S.W.2d 233, 247 (Tex.App.—Fort Worth 1994, writ denied). A general negligence question was submitted to the jury, which found that Neeble was negligent, not the doctors.

The dissent also argues we held in our discussion of points of error 14 and 15 that submission of the negligence question somehow encompassed the “issues” of battery (an intentional tort), unnecessary surgery, or informed consent. We instead held that under broad-form question submission Neeble was not entitled to the separate questions he tendered.

We deny the motion for rehearing.

A majority of the justices of the Court voted to overrule the motion for rehearing en banc.

Justice O’CONNOR dissenting from the overruling of the motion for rehearing en banc. Dissenting opinion attached.