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Tennessee Supreme Court Adopts Objective Approach to Evaluating Causation in Informed Consent Cases


HLD, v. 28, n. 4 (April 2000)

Tennessee Supreme Court Adopts Objective Approach to Evaluating Causation in Informed Consent Cases

Patricia Ashe underwent radiation treatment for lung cancer as recommended by her physician,
Dr. Steven Stroup. Stroup told Ashe that the radiation was a "'midplane dose'" but did not inform her that the treatment might result in a 1% to 2% risk of permanent injury to her spinal cord. Ashe sustained "radiation myelitis" caused by permanent radiation injury to her spinal cord and is now a paraplegic.

Ashe sued Stroup in state trial court for medical malpractice and lack of informed consent. At deposition, Ashe indicated that she did not know what she would have done if Stroup had warned her of the risk of paralysis; at trial, however, Ashe stated that she would not have chosen the treatment if she had known the risk. Because the two testimonies conflicted, the trial court struck the trial testimony and granted Stroup a directed verdict on the informed consent claim. The jury was unable to reach a verdict on the malpractice claim, and the judge declared a mistrial. The appeals court determined that the discrepancy between Ashe's deposition and trial testimonies went to the issue of credibility and that the trial court should not have stricken the trial testimony. The appeals court reversed the trial court's decision and remanded the case for a new trial. Stroup appealed.

The Supreme Court of Tennessee granted appeal to address the appropriate standard for assessing causation in medical malpractice consent cases. The supreme court adopted an objective approach to evaluating causation in an informed consent case and found that the appeals court had properly ruled that a jury should have decided the issue. First, the supreme court explained the differences and similarities among the subjective, objective, and modified objective approaches of evaluating causation in an informed consent case. The supreme court noted that a subjective approach involves only patient testimony of whether the patient would have consented to the procedure after having been advised of the risks. See, e.g., Scott v. Bradford, 606 P.2d 554 (Okla. 1979). The supreme court warned, however, that a subjective approach "potentially places the physician in jeopardy of the patient's hindsight and bitterness" and "could preclude recovery in an informed consent case in which the patient died as a result of an unforewarned collateral consequence." See Sard v. Hardy, 379 A.2d 1014, 1025 (Md. 1977). Next, the supreme court analyzed the majority objective standard approach that resolves the issue "'in terms of what a prudent person in the patient's position would have decided if suitably informed of all perils bearing significance.'" See Canterbury v. Spence, 464 F.2d 772, 791 (D.C. Cir. 1972). Under the objective approach, the supreme court noted, the patient's testimony is relevant but not controlling. Finally, the supreme court reviewed the modified objective approach that determines causation "from the viewpoint of the actual patient acting rationally and reasonably." See Leyson v. Steuermann, 705 P.2d 37 (Haw. Ct. App. 1985). The Tennessee Supreme Court observed, however, that the Hawaiian high court had recently found the approach to be "onerous in application," see Bernard v. Char, 903 P.2d 667 (Haw. 1995), see HLD, v. 23, n. 11, at pp. 48-49, and had abandoned the modified objective approach in favor of the "'better, simpler, and more equitable'" objective approach. Id. at 673.

The Tennessee Supreme Court agreed with the majority of jurisdictions and chose to employ the objective approach in evaluating causation in informed consent cases, finding that the objective approach was consistent with the prevailing standard in negligence cases, appropriately respected a patient's right to self-determination, and provided a realistic, rather than speculative and emotional, framework for a rational resolution of the issue of causation. Applying the objective standard to the instant case, the supreme court explained that Ashe's testimony was only one factor in determining informed consent and narrowed the issue to whether a reasonable patient in Ashe's position would have chosen a different course of treatment had Stroup advised her of the risk of paralysis. The supreme court agreed with the appeals court's decision and observed that the trial court should have allowed the jury 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."

Accordingly, in this issue of first impression in Tennessee, the Tennessee Supreme Court held 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," affirmed the appeals court's judgment reversing the trial court, and remanded the case for a new trial.

Ashe v. Radiation Oncology Assocs., 9 S.W.3d 119 (Tenn. Dec. 27, 1999) (reh'g denied Jan. 7, 2000) (11 pages).

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