Last week a Tennessee Court of Appeals issued a ruling limiting expert testimony in an informed consent case. A failure to obtain informed consent is a type of medical malpractice case where a medical professional breached his or her duty of care by failing to get consent from a patient to perform a medical procedure that caused the patient harm. if you have been injured by a medical procedure, you should contact a medical malpractice attorney.
The requirement that a physician obtain informed consent emanates from the ethical principle in medicine to protect the privacy and personal autonomy of an individual patient. A medical professional must inform patients of their medical diagnosis, the nature and reasons for obtaining a medical procedure, and the risks involved with the procedure. Unless there are special circumstances, a physician may not treat a patient without first obtaining his or her consent. If a patient is injured and the medical professional failed to get informed consent, the patient has grounds for a medical malpractice case.
A medical practitioner does not need to disclose every tiny detail or possible risk involved in a medical procedure. However, the medical professional must disclose the risks and information that a reasonable physician in the same practice and under the same circumstances would have disclosed. In order to prove what a reasonable physician would disclose, the patient can bring expert testimony from another medical professional. The question before the court was whether the plaintiff’s expert at trial should have been allowed give testimony covering all the risks involved in a procedure or only those risks that actually resulted in an injury.
The plaintiff in the White v. Beeks was surgically treated with a product called “InFuse” to treat her herniated disk. InFuse is a recombinant human bone protein applied to a collagen sponge that stimulates natural bone formation. After the surgery, the plaintiff suffered medical complications from excessive bone growth because of the InFuse implant.
Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages.
—Justice Benjamin Cardozo
The plaintiff requested that her medical expert, Dr. Law, be allowed to testify that a reasonable physician would inform a patient of the possibility of “(1) cystic lesions forming in the spinal canal; (2) postoperative fluid collection, requiring further surgery to draw the fluid off; (3) ectopic bone growth; or (4) postoperative radiculitis, which Dr. Law explained was inflammation around the nerve roots.”
The defendant physician brought a motion requesting to limit the expert testimony to bone growth since since the other risks did not materialize. The trial judge granted the motion and found the other risks were not relevant and would be potentially prejudicial under Tennessee Rules of Evidence 401 and 403. The jury returned a verdict in favor of the defendant. The plaintiff brought this appeal requesting a new trial since the expert should have been able to testify about “all” of the possible risks.
In examining the causal relationship between the informed consent and the injury, the majority confirmed that Tennessee follows the Canterbury rule, having two distinct elements of causation: 1) that disclosure of significant risks would have resulted in the plaintiff deciding to forego the treatment, and 2) that the undisclosed risk materialized and caused injury. Without the materialization of the undisclosed risk, the medical professional’s omission would be legally inconsequential. Therefore the majority held that the trial court did not abuse its discretion in limiting expert testimony to only those risks that actually materialized.
The decision adds a hurdle to cases brought by victims suffering injuries due to medical errors. In order to get full expert testimony to the jury, victims in informed consent claims will need to show the materialization of the risks. It is important to have a competent attorney that can preserve all expert testimony, testimony, and evidence for trial.
If you or a loved one has been the victim of medical malpractice an experienced medical malpractice attorney will be able to gather evidence related to the incident and can review all the elements of the case. You are encouraged to contact a local personal injury attorney with experience handling medical malpractice cases.
If you have been the victim of medical malpractice, contact Hartsoe Law Firm, P.C. at (865) 524-5657.
Ike J. White, III v. David A. Beeks, M.D., Dec. 9, 2013, Court of Appeals of Tennessee at Knoxville
Informed Consent, Wikipedia
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Nursing Home Report Card Gives Tennessee A Barely Passing Grade, Oct 16, 2013, Knoxville Injury Lawyer Blog
Supreme Court of Tennessee Affirms Non-Economic Damages for Child’s Car Accident Injuries — Meals v. Ford Motor Co., Nov. 27, 2013, Knoxville Injury Lawyer Blog