§47.27 Informed Consent

The Case: Ashe v. Radiation Oncology Associates , 9 S.W.3d 119 (Tenn. 1999).

The Basic Facts: This case involves a claim for informed consent against a doctor after the patient sustained radiation myelitis and was rendered paraplegic following radiation treatment for a lung tumor.

The Bottom Line:

• "We granted this appeal to address the appropriate standard to be employed when assessing the issue of causation in a medical malpractice informed consent case." 9 S.W.3d at 119.
• "[T]he plaintiff in an informed consent medical malpractice case has the burden of proving: (1) what a reasonable medical practitioner in the same or similar community would have disclosed to the patient about the risk posed by the proposed procedure or treatment; and (2) that the defendant departed from the norm. German v. Nichopoulos, 577 S.W.2d 197, 204 (Tenn. Ct. App. 1978)." Id. at 121.
• "The majority^FN1 approach or the so-called objective standard emanates from the seminal decision in Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972). In Canterbury, the court held that causation in informed consent cases is better resolved on an objective basis 'in terms of what a prudent person in the patient's position would have decided if suitably informed of all perils bearing significance.' Id. at 791. The objective view recognizes that neither the plaintiff nor the fact-finder can provide a definitive answer as to what the patient would have done had the patient known of the particular risk prior to consenting to the procedure or treatment. Id. at 790. Accordingly, the patient's testimony is relevant under an objective approach, but the testimony is not controlling. Id. at 791.

  FN1 Jurisdictions applying the objective standard include: Fain v. Smith, 479 So.2d 1150 (Ala. 1985); Aronson v. Harriman, 901 S.W.2d 832 (Ark. 1995); Hamilton v. Hardy, [549 P.2d 1099 (Colo. Ct. App. 1976)]; Hammer v. Mount Sinai Hosp., [596 A.2d 1318 (Conn. App. Ct. 1991)]; Bernard v. Char, 903 P.2d 667 (Haw. 1995); Sherwood v. Carter, 805 P.2d 452 (Idaho 1990); Funke v. Fieldman, 512 P.2d 539 (Kan. 1973); Sard v. Hardy, 379 A.2d 1014 (Md. 1977); Woolley v. Henderson, 418 A.2d 1123 (Me. 1980);Phillips v. Hull, 516 So.2d 488 (Miss. 1987); Backlund v. University of Washington, 975 P.2d 950 (Wash. 1999); Scaria v. St. Paul Fire & Marine Ins. Co., 227 N.W.2d 647 (Wis. 1975); Dixon v. Peters, 306 S.E.2d 477 (N.C. Ct. App. 1983)."

  Id. at 122.
• "We agree with the majority of jurisdictions having addressed this issue and hold that the objective approach is the better approach. The objective approach circumvents the need to place the fact-finder in a position of deciding whether a speculative and perhaps emotional answer to a purely hypothetical question shall dictate the outcome of the litigation. The objective standard is consistent with the prevailing standard in negligence cases which measures the conduct of the person in question with that of a reasonable person in like circumstances. [RESTATEMENT (SECOND) OF TORTS § 283, p. 12 (1965)]; see also [1 S. Pegalis & H. Wachsman, American Law of Medical Malpractice, § 2.15, 103-104 (1980)] (criticizing subjective test as being out of step with general negligence concepts). The objective test provides a realistic framework for rational resolution of the issue of causation. We, therefore, believe that causation may best be assessed in informed consent cases by the finder of fact determining how nondisclosure would affect a reasonable person in the plaintiff's position." Id. at 123.
• "We also are of the opinion that the objective test appropriately respects a patient's right to self-determination. The finder of fact may consider and give weight to the patient's testimony as to whether the patient would have consented to the procedure upon full disclosure of the risks. When applying the objective standard, the finder of fact may also take into account the characteristics of the plaintiff including the plaintiff's idiosyncrasies, fears, age, medical condition, and religious beliefs. Bernard v. Char, 903 P.2d 667, 674 (Haw. 1995); Fain v. Smith, 479 S.2d 1150, 1155 (Ala. 1985); Backlund v. University of Washington, 975 P.2d 950 (Wash. 1999). Accordingly, the objective standard affords the ease of applying a uniform standard and yet maintains the flexibility of allowing the finder of fact to make appropriate adjustments to accommodate the individual characteristics and idiosyncrasies of an individual patient. We, therefore, hold that the standard to be applied in informed consent cases is whether a reasonable person in the patient's position would have consented to the procedure or treatment in question if adequately informed of all significant perils." Id. at 123-24.
• "In applying the objective standard to the facts of this case, we agree with the Court of Appeals that the jury should not have been precluded from deciding the issue of informed consent. Under the objective analysis, the plaintiff's testimony is only a factor when determining the issue of informed consent. The dispositive issue is not whether Ms. Ashe would herself have chosen a different course of treatment. The issue is whether a reasonable patient in Ms. Ashe's position would have chosen a different course of treatment. The jury, therefore, should have been allowed to decide whether a reasonable person in Ms. Ashe's position would have consented to the radiation therapy had the risk of paralysis been disclosed." Id. at 124.

Other Sources of Note: Mitchell v. Kayem, 54 S.W.3d 775, 782 (Tenn. Ct. App. 2001) (holding that the Ashe rationale strictly refers to a Plaintiff's choice to undergo the medical procedure and not to whether the Plaintiff would have sought a second opinion and would have chosen a more experienced surgeon if adequately informed);Hawk v. Chattanooga Orthopedic Group, Inc., 45 S.W.3d 24 (Tenn. Ct. App. 2000) (extended discussion on informed consent cases); Church v. Perales, 39 S.W.3d 149 (Tenn. Ct. App. 2000) (another extensive discussion of the law and the impact of signing "implied consent" forms.).

Recent Cases: Miller v. Dacus , 231 S.W.3d 903 (Tenn. 2007) (ruling that a child born alive has an independent cause of action for injuries caused by failure of physician to obtain informed consent from child's mother during labor).