In its May 18, 2015 decision, the Supreme Court of Tennessee (“Tennessee Supreme Court”) overturned a defense verdict in a Tennessee medical malpractice case, holding that the trial court had erred by excluding the plaintiff’s expert testimony regarding undisclosed medical risks in a lack of informed consent claim, even though they had not materialized. The Tennessee Supreme Court further held that because it was more probable than not that the error influenced the jury’s verdict, it ordered a new trial.
The plaintiff had gone to the defendant orthopedic surgeon after having suffered multiple injuries to his back that caused him to suffer severe back pain. After a trial of physical therapy and pain management failed to control his pain, the plaintiff opted to have the surgery on his back that was proposed by the defendant surgeon, which involved using a bone-grafting product called InFuse. After the defendant surgeon performed the back surgery using InFuse, the plaintiff experienced a complication of using the InFuse product: ectopic bone growth at the site of the fusion that caused him to continue to suffer severe pain due to pressure on the nerve, according to the plaintiff’s Tennessee medical malpractice lawsuit.
The plaintiff claimed in his medical malpractice lawsuit that the defendant orthopedic surgeon had failed to obtain his informed consent by not advising him of the risks associated with the use of the InFuse product during the surgery. The defendant surgeon requested the trial court to limit the plaintiff’s medical expert’s trial testimony regarding the risks of surgery that should have been disclosed to the plaintiff to only those risks that materialized and allegedly caused harm, and to exclude testimony about the potential risks that did not occur. The trial court granted the defendant’s motion and limited the plaintiff’s expert’s testimony to only those risks associated with InFuse that allegedly occurred and caused an injury to the plaintiff.
At the conclusion of the four-day jury trial in August 2012, the jury returned a defense verdict. The plaintiff appealed to the intermediate appellate court, which affirmed the defense verdict. The plaintiff then sought permission to appeal to the Tennessee Supreme Court, which was granted.
In order to prove a lack of informed consent claim, Tennessee Code Annotated section 29-26-118 requires that the plaintiff establish that the defendant did not supply appropriate information to the patient in obtaining informed consent to the procedure out of which plaintiff’s claim allegedly arose, in accordance with the recognized standard of acceptable professional practice in the profession and in the specialty, if any, that the defendant practices in the community in which the defendant practices and in similar communities.
The Tennessee Supreme Court stated that a prudent person needs to be informed of all “perils bearing significance” in order to give informed consent, and that “perils bearing significance” necessarily include those perils that caused harm and those that did not. The fact that a risk did not materialize does not make it less of a risk. At the time a patient is making a decision whether to undergo a medical procedure, he needs to know prospectively the risks he is facing—not just those risks that in hindsight materialized and caused him harm. The fact that a risk did not materialize during or after surgery is not a determining factor in whether it should have been disclosed to a patient before surgery. Accordingly, the jury should have been allowed to hear the plaintiff’s expert’s complete testimony about the risks of InFuse, as such evidence would have been relevant under Tennessee Rule of Evidence 401 in the jury’s assessment of what a prudent person would have decided if properly informed of all significant risks.
Source White v. Beeks, M.D., No. E2012-02443-SC-R11-CV.
If you or a loved one were injured as a result of medical negligence in Tennessee or elsewhere in the United States, you should promptly consult with a Tennessee medical malpractice lawyer, or a medical malpractice lawyer in your U.S. state, who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.
Turn to us when you don’t know where to turn.