Doctors must prospectively disclose all significant medical risks to their patients—not just those risks that ultimately cause harm, holds Tennessee Supreme Court.

By Daniel A. Horwitz

Under Tennessee law, a doctor who operates on a patient generally faces liability for three potential claims if something goes wrong:

  1. Medical battery, which means that the doctor performed a procedure that the patient did not authorize;[1]
  1. Medical malpractice – traditionally known as “negligence” or “medical negligence,” and now referred to as “health care liability” under Tennessee law – which means that the doctor’s performance fell below the recognized standard of acceptable professional practice in the doctor’s community;[2] and
  1. Lack of informed consent, which means that the doctor failed to provide sufficient information to the patient to allow him or her to evaluate the risks of the procedure that was performed.[3]

In Ike J. White, III v. David A. Beeks, M.D., the Tennessee Supreme Court addressed the third of these potential theories of liability:  lack of informed consent.  Ultimately, the Tennessee Supreme Court concluded that in order to avoid liability for failing to provide informed consent, doctors must prospectively disclose all significant medical risks to patients—not merely those risks that ultimately materialized and caused harm.

The theory of lack of informed consent originates in Tennessee common law, which means that it was initially created by judges through judicial precedent, rather than created by statute.  Since then, however, liability for lack of informed consent has been enacted into law and codified by the Tennessee legislature at Tenn. Code Ann. § 29-26-118.  In full, Tenn. Code Ann. § 29-26-118 provides that to recover against a medical provider under a theory of lack of informed consent,

“the plaintiff shall prove by [expert testimony] 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 question presented in White v. Beeks was whether a patient who suffered an injury after having back surgery had been unfairly prevented from proving that he was not provided informed consent by his doctor.  At trial, the trial judge ruled that the patient’s expert witness could only testify about whether the patient’s doctor had informed the patient that the surgery could cause the specific injury that ultimately materialized.  On appeal, however, the Supreme Court of Tennessee held that the trial judge’s ruling was in error, and that the patient’s expert witness should have been permitted to testify about all of the potential risks of the operation—some of which the patient’s doctor allegedly never told him about.  According to the Tennessee Supreme Court:

“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 patient’s expert witness’s] complete testimony about the risks of [the surgery], as this 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 the significant risks.”

To provide an illustration of what this means in practice, suppose that a doctor informs a patient that a surgery could result in Consequence A, but that the doctor fails to inform the patient that the surgery could also result in Consequence B.  After undergoing surgery, the patient develops Consequence A only.  Under these circumstances, if the patient can prove that he would not have consented to the surgery at all if he had known about Consequence B as well, and if he can also prove that his doctor should have informed him of Consequence B in accordance with the recognized standard of acceptable medical practice, then the patient can recover against the doctor for lack of informed consent.

Read the Tennessee Supreme Court’s opinion in Ike J. White, III v. David A. Beeks, M.D. here.

Questions about this article?  Email Daniel Horwitz at daniel.a.horwitz@gmail.com.

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[1] See Blanchard v. Kellum, 975 S.W.2d 522, 524 (Tenn. 1998) (“Performance of an unauthorized procedure constitutes a medical battery.  A simple inquiry can be used to determine whether a case constitutes a medical battery: (1) was the patient aware that the doctor was going to perform the procedure (i.e., did the patient know that the dentist was going to perform a root canal on a specified tooth or that the doctor was going to perform surgery on the specified knee?); and, if so (2) did the patient authorize performance of the procedure?”).

[2] See Tenn. Code Ann. § 29-26-115(a)-(b).

[3] See Tenn. Code Ann. § 29-26-118 (providing that to recover on a theory of lack of informed consent, a patient must prove that “the defendant did not supply appropriate information to the patient in obtaining informed consent . . . in accordance with the recognized standard of acceptable professional practice in the profession . . . .”).