Ashe v. Radiation Oncology Associates

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE

FOR PUBLICATION

Filed:
FILED
December 27, 1999
December 27, 1999

Cecil Crowson, Jr.
PATRICIA P. ASHE, ) Appellate Court Clerk
)
PLAINTIFF/APPELLANT, ) Davidson Circuit No. 95C-58
)
v. ) Hon. Hamilton V. Gayden, Jr.,
) Judge
RADIATION ONCOLOGY )
ASSOCIATES and STEVEN L. ) No. M1997-00036-SC-R11-CV
STROUP, M.D., )
)
DEFENDANTS/APPELLEES. )

FOR APPELLANT: FOR APPELLEE:

DAVID RANDOLPH SMITH THOMAS A. WISEMAN III
ROBERT BLAKE MENZEL Nashville
Nashville

OPINION

COURT OF APPEALS AFFIRMED
CASE REMANDED HOLDER, J.
 OPINION

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. We find that the objective standard as set forth in this

opinion best balances a patient’s right to self-determination with the need for a

realistic framework for rational resolution of the issue of causation. We 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. The decision

of the Court of Appeals is affirmed, and the case is remanded to the trial court

for a new trial.

BACKGROUND

The plaintiff, Patricia P. Ashe, was diagnosed with breast cancer in 1988.

She ultimately underwent a double mastectomy and chemotherapy as treatment

for her breast cancer. In 1993, she began experiencing problems with a cough

and a fever. She returned to her oncologist, Dr. Michael Kuzu, where she

presented symptoms of fever, cough, pain in the abdomen, weight loss,

decreased appetite, and irritability. A chest x-ray and a CT scan revealed the

presence of a mass in the medial left apex of her left lung.

The record indicates that the lung tumor could possibly have been

metastatic cancer from the breast. Ms. Ashe underwent surgery, and the upper

portion of her left lung was removed. She underwent chemotherapy and was

referred to the defendant, Dr. Steven L. Stroup, for consideration of radiation

therapy. Dr. Stroup testified that chemotherapy alone would be indicated if the

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lung tumor were metastasized breast cancer. He, however, opined that radiation

therapy would be indicated if the lung cancer were primary as opposed to

secondary cancer.

Dr. Stroup prescribed radiation treatment for Ms. Ashe. She received a

daily dose of 200 centigray for twenty-five days. He described the dose as a

“midplane dose.” Ms. Ashe sustained “radiation myelitis” caused by a permanent

radiation injury to her spinal cord. She is now a paraplegic.

Dr. Stroup did not inform Ms. Ashe that the radiation treatment might

result in a permanent injury to her spinal cord. According to Dr. Stroup, the risk

that she would sustain a spinal cord injury was less than one percent. Mrs. Ashe

proffered the testimony of her expert, Dr. Carlos Perez. Dr. Perez opined that

the risk of spinal cord injury was one to two percent. Dr. Perez testified that the

applicable standard of care required physicians to warn patients about the risk of

radiation injury to the spinal cord.

Ms. Ashe filed the present action alleging claims for medical malpractice

and lack of informed consent. At trial, she testified that she would not have

consented to the radiation therapy had she been informed of the risk of

paralysis. Defense counsel on cross-examination pointed out that the plaintiff

did equivocate in her deposition on the issue of consent. Her deposition

testimony indicated that she did not know what she would have done had she

been warned about the risk of spinal cord injury. She then testified on redirect

examination as follows:

True, but the risk of being paralyzed and put in a wheelchair for the
rest of your life was not one of the items, if there was any
discussed, because had he said that within a six-month
period–which they said that would be the time frame for it to

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 happen–had he said, ‘Patty, if you do this there is a risk that you
will be in a wheelchair six months from now,’ I would have told him,
‘I will take my chances.’ I would not have it done.

The trial court found that the plaintiff’s trial testimony conflicted with her

deposition testimony regarding whether she would have consented to the

procedure had she been warned of the risk of spinal cord injury. The trial court,

therefore, struck the trial testimony and granted the defendant a directed verdict

on the informed consent claim. The plaintiff’s malpractice claim went to the jury.

The jury was unable to reach a verdict, and a mistrial was declared.

The plaintiff appealed to the Court of Appeals. The Court of Appeals held

that as part of the plaintiff’s informed consent claim she was required to prove

that a reasonable person knowing of the risk for spinal cord injury would have

decided not to have had the procedure performed. The Court held that the

discrepancy between the trial testimony and deposition testimony went to the

issue of credibility and that the trial testimony should not have been stricken.

The Court of Appeals reversed the trial court’s grant of a directed verdict on the

informed consent claim and remanded the case for a new trial.

ANALYSIS

The burden of proof on the standard of care element in medical

malpractice informed consent cases is controlled by Tenn. Code Ann.

§ 29-26-118. Pursuant to § 29-26-118, a plaintiff must prove by expert testimony

that

the defendant did not supply appropriate information to the patient
in obtaining his 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

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 in the specialty, if any, that the defendant practices in the
community in which he practices or in similar communities.

Id. In addition, Tenn. Code Ann. § 29-26-115 requires that the plaintiff prove the

recognized standard of acceptable professional practice, that the defendant

acted with less than ordinary and reasonable care in accordance with that

standard, and that the plaintiff sustained injuries as a result of the defendant’s

negligent act or omission. Accordingly, the 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).

This Court recently enunciated a distinction between a lack of informed

consent case and a pure medical battery case. In Blanchard v. Kellum, 975

S.W.2d 522 (Tenn. 1998), this Court defined a medical battery as a case in

which a doctor performs an unauthorized procedure. Id. at 524. A medical

battery may typically occur when: (1) a professional performs a procedure that

the patient was unaware the doctor was going to perform; or (2) the procedure

was performed on a part of the body other than that part explained to the patient

(i.e., amputation of the wrong leg). Id. A lack of informed consent claim typically

occurs when the patient was aware that the procedure was going to be

performed but the patient was unaware of the risk associated with the procedure.

Id.

The case now before us is not a medical battery case. Ms. Ashe had

authorized the radiation treatment. Ms. Ashe, however, contends that she was

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not apprised of certain risks inherent in the treatment. Her claim, therefore, is

premised on the lack of informed consent.

The issue with which we are now confronted is whether an objective,

subjective, or a hybrid subjective/objective test shall be employed when

assessing causation in medical malpractice informed consent cases. The issue

is one of first impression in Tennessee. The majority of jurisdictions having

addressed this issue follow an objective standard. A minority of jurisdictions

having addressed the issue follow the subjective approach. One jurisdiction,

Hawaii, employed a “modified objective standard” for informed consent cases for

approximately ten years. Hawaii has now abandoned the modified approach in

favor of the objective standard. We shall now examine the various approaches

and the rationales behind these approaches.

Subjective Standard

The plaintiff urges this Court to follow the minority rule or adopt a

subjective standard when evaluating causation in an informed consent case.

Causation under the subjective standard is established solely by patient

testimony. Patients must testify and prove that they would not have consented

to the procedures had they been advised of the particular risk in question. See

e.g., Scott v. Bradford, 606 P.2d 554 (Okla. 1979); Wilkinson v. Vessey, 295

A.2d 676 (R.I. 1972). Accordingly, resolution of causation under a subjective

standard is premised elusively on the credibility of a patient’s testimony.

The subjective standard engages in an abstract analysis. The abstract

analysis not only poses a purely hypothetical question but seeks to answer the

hypothetical question. One commentator has framed this hypothetical question

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as follows: “Viewed from the point at which [the patient] had to decide, would the

patient have decided differently had he known something he did not know?”

Canterbury v. Spence, 464 F.2d 772, 790 (D.C. Cir. 1972) quoting Waltz &

Scheuneman, Informed Consent to Therapy, 64 Nw.U.L.Rev. 628, 647 (1970).

Proponents of the subjective test argue that a patient should have the

right to make medical determinations regardless of whether the determination is

rational or reasonable. Gouse v. Cassel, 615 A.2d 331, 335 (Pa. 1992).

Opponents, however, focus on the unfairness of allowing the issue of causation

to turn on the credibility of the hindsight of a person seeking recovery after

experiencing a most undesirable result. Sard v. Hardy, 379 A.2d 1014, 1025

(Md. 1977). “Patients cannot divorce their re-created decision process from

hindsight.” F. Rozovsky, Consent to Treatment, § 1.13.4, 62-63 (1984).

Accordingly, the subjective test potentially places the physician in jeopardy of the

patient’s hindsight and bitterness. Sard, 379 A.2d at 1025. Moreover, the

adoption of a subjective standard could preclude recovery in an informed

consent case in which the patient died as a result of an unforewarned collateral

consequence. Id.

Objective Standard

The majority1 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

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Jurisdiction s applying th e objec tive standa rd include : Fain v. Sm ith, 479 So.2d 1150
(Ala. 198 5); Aronson v. Harriman , 901 S.W .2d 832 ( Ark. 19 95); Hamilton v. Hardy, 549 P.2d 1099
(Colo. Ap p. 1976) ; Hamm er v. Mount Sinai Hosp., 596 A.2d 1318 (C onn. Ap p. 1991) ; Bernard v.
Char, 903 P.2d 667 (H aw. 199 5); Sherwood v. Carter, 805 P.2d 452 (Ida ho 199 0); Funke v.
Fieldman, 512 P.2d 539 (Ka n. 1973) ; Sard v. Hardy, 379 A.2d 1014 (M d. 1977) ; W oolley v.
Henderson, 418 A.2d 1123 (M e. 1980) ; Phillip s v. H ull, 516 So .2d 488 ( Miss. 19 87); Backlund v.
University of Washington, 975 P.2d 950 (W ash. 19 99); Scaria v. St. Paul Fire & Marine Ins. Co.,
227 N .W .2d 647 ( W is. 1975); Dixon v. Peters, 306 S.E.2d 477 (N.C. Ct. App. 1983 ).

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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.

Modified Objective Standard

The modified objective standard was first recognized in Leyson v.

Steuermann, 705 P.2d 37 (Haw. Ct. App. 1985). In Leyson, the Hawaii Court of

Appeals attempted to balance patient’s right to self-determination with the

concerns espoused in Canterbury of subjecting a physician to a patient’s

bitterness or hindsight following an undesirable result. The resulting test

determined causation “from the viewpoint of the actual patient acting rationally

and reasonably.” Id. at 47, n. 10.

Approximately ten years after the inception of the modified approach, the

approach was declared to be onerous in application. In Bernard v. Char, 903

P.2d 667 (Haw. 1995), the Hawaii Supreme Court elaborated that:

In its effort to achieve the desired result of combining the objective
and subjective standards, the modified objective standard injects at
least one extra level of complexity into the causation analysis.
Under the objective standard, the factfinder must suspend his or
her own viewpoint and step into the viewpoint of a reasonable
person to objectively assess the plaintiff-patient’s decision to
undergo treatment. Under the subjective standard, the factfinder
must simply assess the credibility of the plaintiff-patient when he or
she invariably asserts that he or she would have declined treatment
with proper disclosure. Under the “modified objective standard,”

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 however, the factfinder must first suspend his or her viewpoint,
then place himself or herself in the mind of the actual patient, and,
then, while maintaining the viewpoint of the actual patient, try to
determine what the actual patient would have decided about the
proposed medical treatment or procedure, if the actual patient were
acting rationally and reasonably.

Id. at 673. Accordingly, the modified approach was abandoned in favor of the

objective standard.

[D]espite being well-intentioned, [it] exacts too much of a cost in the
form of added complexity in seeking to solve problems associated
with the preexisting objective and subjective standards while at the
same time remaining faithful to the laudable purposes behind such
standards.

Id. The Court held: (1) that the objective standard provided “a better, simpler,

and more equitable analytical process;” and (2) that the objective standard

ultimately addressed the concerns which prompted the creation of the modified

test.

CONCLUSION

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

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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.

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 idiosyncracies 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.

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

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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.

The judgment of the Court of Appeals reversing the trial court is affirmed.

The case is remanded for a new trial consistent with this opinion. Costs of the

appeal to the Court of Appeals shall be as previously taxed; costs of the appeal

to this Court shall be taxed against the plaintiff for which execution may issue if

necessary.

JANICE M. HOLDER, JUSTICE

Concurring:

Anderson, C.J.
Drowota, Birch, and Barker, J.J.

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